## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 10 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

PHILIP WASHBURN, M.D.,

Plaintiff-Appellant,

v. UNITED STATES DEPARTMENT OF JUSTICE; UNITED STATES DRUG ENFORCEMENT ADMINISTRATION; DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING, hereinafter known as D.O.P.L.; J. CRAIG JACKSON, Director D.O.P.L.; DAVID BANCROFT, agent, D.O.P.L.; UTAH COUNTY ATTORNEYS OFFICE; CRAIG R. MADSEN, Criminal Division Chief; UTAH COUNTY; THE CITY OF PROVO, Utah; UTAH COUNTY NARCOTICS ENFORCEMENT TEAM, N.E.T.; RUSSELL BILLINGS, Officer; D. JENSEN, Officer, Utah County N.E.T.; JERRY L. HARPER, Officer, Utah County N.E.T.; LEE FOX, Officer, Utah County N.E.T.; PATTY JOHNSON, Officer, Utah County N.E.T.; UTAH DEPARTMENT OF COMMERCE, Division of Occupational and Professional Licensing; W. DON ROGERS; GREGG WILLIAMS, DEA; SCOTT MEADOWS, DEA; MICHAEL A. DEMARTE, DEA; DONALD W. No. 03-4058 (D.C. No. 2:01-CV-268-PGC)

(D. Utah)* This order and judgment is not binding precedent, e xcept under the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.

1 Although we recognize that appellant is proceeding pro se, he failed to attach copies of the magistrate judge’s report and recommendation and the district court’s final orders as required by 10th Cir. R. 28.2(A)(1). We admonish -2- MENDRALA, DEA; ROBERT JOHNSON, DEA; UTAH ATTORNEY GENERALS OFFICE; R. PAUL ALLRED, Assistant Attorney General,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before EBEL , HENRY , and MURPHY , Circuit Judges.

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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Plaintiff Philip Washburn, M.D., proceeding pro se, appeals from an order of the district court dismissing some of his claims against various defendants and granting summary judgment to defendants on the remaining claims. We affirm. 1appellees’ counsel for not complying with Rule 28.2 (B) which requires that the

appellees’ brief include these rulings if the appel lant fails to include them in his brief. -3- Dr. Washburn was investigated by the state licensin g board as well as the state narcotics taskforce regarding his prescriptio n practices. The investigations revealed that he had been overprescribing controlle d substances and was not following proper medical guidelines. As a result, Dr. Washburn signed a stipulation in which he voluntarily surrendered his controlled substances license and agreed that he would not reapply for another on e. In the process, Dr. Washburn stated that he was signing the stipulation voluntarily and that the stipulation, once approved, would be the final sett lement of the matter. Upon receipt of that agreement, the federal Drug En forcement Agency (DEA) informed Dr. Washburn that his DEA Certificat e of Registration was subject to revocation. Dr. Washburn agreed to volu ntarily surrender his registration. Later, the Utah County Attorney’s Of fice decided not to criminally prosecute Dr. Washburn. Approximately three years later, Dr. Washburn filedthis action in federal district court in which he alleged his rights underthe Fourth, Fifth, Seventh, and Fourteenth Amendments had been violated. He allege d defendants had made false and defamatory statements about him, permitted “unp riviledged” publication to third parties, harmed his reputation in the communi ty, and exposed him to2 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics ,

403 U.S. 388 (1971)

. -4- contempt and ridicule. Dr. Washburn alleged he had lost his ability to practice medicine, lost the respect of the community and the medical profession, and had lost his ability to earn a living. He sought over 90 million dollars in damages and reinstatement of his controlled substance license, as well as a public explanation and apology. Adopting the magistrate judge’s report and recommen dation, the district court dismissed Dr. Washburn’s claims (1) under 42 U.S.C. §§ 1985(3) and 1986 for lack of jurisdiction; (2) against the Utah County Narcotics Enforcement Team and the county attorneys as not proper defendants b efore the court; (3) against the Department of Justice and the DEA as improper defendants in Bivens 2 actions; and (4) against the DEA individual defendants as barred by the statute of limitations. The court granted summary judgment infavor of (1) the Provo City and Utah County defendants as those claims were barred by the statute of limitations; (2) the Utah state defendants as the s tate, its agencies, and the individual state defendants in their official capac ities were improper defendants in a 42 U.S.C. § 1983 action; and (3) the state defendants in their indi vidual capacities as protected by qualified immunity. The court noted that the remaining defendants had not been served and were not parties to the action.-5-

On appeal, Dr. Washburn argues that the magistrate judge did not have authority to rule on d ispositive motions as he did not agree to have the magistrate judge manage his case. He contends that only a jury can determine whether constitutional violations occurred and whether the defense of immunity applies. He contests the district court’s order dismissing s ome of his claims for lack of jurisdiction, noting, for the first time, that he i s a Native American. Dr. Washburn argues that the district court erred i n granting the county’s motion to dismiss because the county can sue and be sued. He contends that he did not file this case as a Bivens action, but as a breach of contract action and the refore, it was timely. Dr. Washburn argues that evidence w as illegally seized to be used against him in a criminal prosecution, thus violati ng his right against self-incrimination. “We review the district court’s ruling as to defend ant’s motion to dismiss de novo.” Steele v. United States , 19 F.3d 531, 532 (10th Cir. 1994). “We review a grant of summary judgment de novo and appl y the same legal standard used by the district court under Fed. R. Civ. P. 56 (c).” Timmons v. White , 314 F.3d 1229, 1232 (10th Cir. 2003). Our review is limited to those issues to which Dr. Washburn objected in his response to the magistrate judge’s report and recommendation. See Powell v. Ray , 301 F.3d 1200, 1202 n.3 (10th Cir. 2002), cert. denied , 538 U.S. 927 (2003).-6-

Upon review of the record and the parties’ briefs, we AFFIRM the judgment of the district court for substantially th e reasons stated in the magistrate judge’s report and recommendation of February 5, 20 03, as adopted by the district court in its orders of February 24, 2003 and March 3, 2003. The mandate shall issue forthwith.

Entered for the Court

Michael R. Murphy Circuit Judge