### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk March 18, 1999

TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT



### RE: 98-6151, Braun v. Elliot Filed on February 24, 1999 The order and judgment filed on February 24, 1999, contains two typographical errors. On page 2, lines 12-13, firs t full paragraph, the sentence should read: “ Thus, he recommended that the action be dismissed p ursuant to 28 U.S.C. § 1915(g). ” Also on page 2, lines 17-18, first sentence of t he last paragraph, the sentence should read: “ On appeal, Mr. Braun raises a constitutional challe nge to 28 U.S.C. § 1915(g). A copy of the corrected order and judgment is attac hed. Sincerely, Patrick Fisher, Clerk of Court By: Keith Nelson Deputy Clerk

encl.* This order and judgment is not binding precedent, e xcept under the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

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

### FEB 24 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CONRAD J. BRAUN,

Petitioner-Appellant,

v. W. ELLIOTT, Official Capacity as Corrections Officer for FCI El Reno; A. M. FLOWERS, Warden,

Respondents-Appellees. No. 98-6151 (D.C. 97-CV-2057) (Western District of Oklahoma)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCK , and HENRY , Circuit Judges.

After examining the briefs and appellate record, th is 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). T he case is therefore ordered submitted without oral argument. Plaintiff Conrad J. Braun, a federal prisoner appearing pro se, timely2

appeals the district court's dismissal of his civil rights action pursuant to 28 U.S.C. § 1915(g) without prejudice to refiling upon full payment of the filing fee. We deny him leave to proceed in forma pauperi s and dismiss the appeal. In his report to the district court, the magistrate judge took judicial note that Mr. Braun had three prior actions that were di smissed on the grounds they were frivolous, malicious, or failed to state a cla im. Report and Recommendation, Rec. doc. 10, at 2 (W.D. Okla. Feb. 13, 1998); see Green v. Nottingham , 90 F.3d 415, 418 (10th Cir. 1996) (federal courts may take judicial notice of proceedings in other courts if they direc tly relate to presently disputed matters). The magistrate also found that Mr. Braun was not under imminent danger of serious physical injury. Id. at 3. Thus, he recommended that the action be dismissed pursuant to 28 U.S.C. § 1915(g). Mr. Braun did not file any objections to the magistrate's report. Accordingly , the district court issued an order on March 23, 1998 adopting the magistrate's r eport in its entirety and dismissing the action. Rec. doc. 11. On appeal, Mr. Braun raises a constitutional challe nge to 28 U.S.C. § 1915(g). Failure to timely object to the magistrat e's report and recommendation, however, waives appellate review of both factual an d legal questions determined by the magistrate. See Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991) (adopting “firm waiver” rule). Here, the mag istrate clearly informed Mr.1 We also note that during the pendancy of this appea l, we rejected just such

a constitutional challenge to 28 U.S.C. § 1915(g). See White v. Colorado , 157 F.3d 1226, 1232-35 (10th Cir. 1998), petition for cert. filed (U.S. Jan. 5, 1999) (No. 98-7542). 3 Braun of the consequences of not making timely obje ctions, and this case presents no ends of justice that warrant making an exception. 1 See id. (holding waiver applicable to pro se litigant only when magi strate has informed litigant of consequences of failure to object, unless ends of j ustice dictate otherwise). Accordingly, because Mr. Braun has waived appellate review, we DENY him leave to proceed in forma pauperis and DISMISS the appeal.

Entered for the Court, Robert H. Henry Circuit Judge