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, first full paragraph, the sentence

should read: “Thus, he recommended that the action be dismissed pursuant to 28

U.S.C. § 1915(g). ” Also on page 2, lines 17-18, first sentence of the last paragraph,

the sentence should read: “On appeal, Mr. Braun raises a constitutional challenge to

28 U.S.C. § 1915(g).

A copy of the corrected order and judgment is attached.

Sincerely,

Patrick Fisher, Clerk of Court

By: Keith Nelson

Deputy Clerk

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* This order and judgment is not binding precedent, except under the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

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, 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 Conrad J. Braun, a federal prisoner appearing pro se, timely
2

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 pauperis 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 dismissed on the grounds they

were frivolous, malicious, or failed to state a claim. 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 directly 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 report in its entirety and

dismissing the action. Rec. doc. 11.

On appeal, Mr. Braun raises a constitutional challenge to 28 U.S.C. §

1915(g). Failure to timely object to the magistrate's report and recommendation,

however, waives appellate review of both factual and 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 magistrate clearly informed Mr.
1We also note that during the pendancy of this appeal, 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 objections, 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 magistrate has informed litigant of

consequences of failure to object, unless ends of justice 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