* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable John W. Lungstrum, District Judge, UnitedStates 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 LUN GSTRUM, ** District Judge.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff appeals from a district court order grant ing defendants’ motion for summary judgment. We affirm. The defendants are the United States Marshals and A ssistant United States Attorney who effected the seizure and civil forfeit ure of plaintiff’s property in connection with his prosecution on various drug tra fficking charges. The forfeiture proceeding concluded with a consent judg ment, which ordered some of the property seized to be forfeited and the rest re turned to plaintiff or his wife. Sometime later, plaintiff commenced this action forconstitutional redress under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971), claiming defendants had violated his du e process rights because various items of released property allegedly had be en “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 litigati on, plaintiff interjected an additional due process claim based on the manner in which some of the property had been seized. Ultimately, the district court gr anted defendants’ motion for summary judgment on grounds of res judicata and imm unity.1 Defendants also insist plaintiff’s appeal is subjec t to waiver for failure to

object to the magistrate judge’s recommendation. W e reject this contention, however, as the record contains a timely objection from plaintiff, R. I at doc. 19, which was specifically acknowledged by the districtcourt, id. doc. 20. -3- On appeal, plaintiff has abandoned the claims regar ding loss of property and illegal seizure urged in the district court, an d 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 associate d criminal complaint was dismissed and then reinstated upon indictment, was unauthorized and unconstitutional. In their answer brief, defendant s point out the obvious procedural infirmity of plaintiff’s appeal and ask us to enforce applicable waiver principles, under which plaintiff has jeopardized b oth his original, abandoned claims and his new, unpreserved contentions. 1 See generallyLyons v. Jefferson Bank & Trust , 994 F.2d 716, 720-21 (10th Cir. 1993); Dixon v. C ity of Lawton , 898 F.2d 1443, 1449 n.7 (10th Cir. 1990). In his reply brief, plaintiff makes no attempt to j ustify 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 wa iver consequences that ordinarily attend such conduct. Instead, he presen ts yet another digression from his original allegations, arguing such collateral m atters as the inadequacy of the field testing done on the contraband underlying his drug conviction and the-4-

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. W e conclude that plaintiff has lost, through unexcused waiver, all of the issues r aised 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