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* This order and judgment is not binding precedent, except under the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

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, this panel has determined

unanimously that oral argument would not materially assist the determination of

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 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. 1
appellees’ counsel for not complying with Rule 28.2(B) which requires that the

appellees’ brief include these rulings if the appellant fails to include them in his

brief.

-3-

Dr. Washburn was investigated by the state licensing board as well as the

state narcotics taskforce regarding his prescription practices. The investigations

revealed that he had been overprescribing controlled 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 one. In the process,

Dr. Washburn stated that he was signing the stipulation voluntarily and that the

stipulation, once approved, would be the final settlement of the matter. 

Upon receipt of that agreement, the federal Drug Enforcement Agency

(DEA) informed Dr. Washburn that his DEA Certificate of Registration was

subject to revocation. Dr. Washburn agreed to voluntarily surrender his

registration. Later, the Utah County Attorney’s Office decided not to criminally

prosecute Dr. Washburn. 

Approximately three years later, Dr. Washburn filed this action in federal

district court in which he alleged his rights under the Fourth, Fifth, Seventh, and

Fourteenth Amendments had been violated. He alleged defendants had made false

and defamatory statements about him, permitted “unpriviledged” publication to

third parties, harmed his reputation in the community, and exposed him to
2 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 recommendation, 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 before 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 in favor 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 state, its agencies, and the

individual state defendants in their official capacities were improper defendants

in a 42 U.S.C. § 1983 action; and (3) the state defendants in their individual

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 some of his claims for lack of

jurisdiction, noting, for the first time, that he is a Native American. 

Dr. Washburn argues that the district court erred in 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 therefore,

it was timely. Dr. Washburn argues that evidence was illegally seized to be used

against him in a criminal prosecution, thus violating his right against

self-incrimination. 

“We review the district court’s ruling as to defendant’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 apply 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 the reasons stated in the magistrate

judge’s report and recommendation of February 5, 2003, 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