Talley v. Hesse

PUBLISH

UNITED STATES COURT OF APPEALS
Filed 8/9/96TENTH CIRCUIT

CURTIS J. TALLEY,

Plaintiff-Appellant,

v.

LOU HESSE, BEN GRIEGO, No. 95-1469
ARISTEDES ZAVARAS, CHRIS
CLEMENTS, KARL GILGE,
WARRENT T. DIESSLIN, DONICE
NEAL, IRVING JACQUEZ,

Defendants-Appellees,

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 93-K-2055)

Submitted on the briefs:

Curtis J. Talley, Pro Se.

Gale A. Norton, Attorney General, and Laura M. Maresca, Assistant Attorney
General, Denver, Colorado, for Defendants-Appellees.

Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.

SEYMOUR, Chief Judge.
 Curtis J. Talley, a pro se prisoner, brought this action under 28 U.S.C. § 1983

against officers and employees of the Colorado Department of Corrections. Mr.

Talley alleged numerous constitutional violations arising from disciplinary

proceedings conducted against him. The district court adopted the report of a

magistrate judge recommending that Mr. Talley’s claims be dismissed. Mr. Talley

appeals and we affirm. 1

I

Mr. Talley was charged under the penal discipline code with rape in the prison

and with possession of dangerous contraband. After a disciplinary hearing, Mr.

Talley was placed in administrative segregation and ultimately in a maximum

security facility. In the present lawsuit, Mr. Talley asserts numerous constitutional

violations, including allegations that he was denied due process in his disciplinary

and segregation hearings, and in the revocation of his good time credits. After the

district court determined that Mr. Talley’s complaint was not subject to dismissal as

frivolous under 28 U.S.C. § 1915(d), discovery proceeded. Defendants subsequently

filed a motion for summary judgment. Counsel was appointed to represent Mr.

1
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); 10th Cir. R.
34.1.9. The cause is therefore ordered submitted without oral argument.

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Talley, and he filed an amended complaint.

By the time the case was ready for a ruling on whether summary judgment was

appropriate, the Supreme Court had decided Sandin v. Conner, 115 S. Ct. 2293

(1995). The magistrate judge concluded that Mr. Talley’s due process claims were

without merit under Sandin, that the remaining claims were not supported, and that

defendants’ motion for summary judgment should be granted. The district court

adopted the magistrate judge’s report and recommendation, and dismissed the

complaint with prejudice.

II

As an initial matter, we observe that Mr. Talley did not file written objections

to the magistrate judge’s recommendations. This circuit has adopted a firm waiver

rule under which a party who fails to make timely objection to the magistrate’s

findings and recommendations waives appellate review of both factual and legal

questions. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). This

rule does not apply, however, when the ends of justice dictate otherwise or when the

magistrate’s order does not clearly apprise a pro se litigant of the consequences of

a failure to object. Id.

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 While the report here does inform Mr. Talley that his failure to file written

objections may bar him from appealing the factual findings of the magistrate judge,

the report does not state that a failure to object waives appellate review of legal

questions as well. 2 The magistrate judge recommended summary judgment be

granted on the basis that no factual disputes existed and that defendants were entitled

to judgment as a matter of law. Since the report does not inform Mr. Talley that his

failure to object would bar review of these legal issues, we conclude that application

of our waiver rule is not appropriate in this case. We therefore turn to the merits of

the appeal.

III

Mr. Talley contends on appeal that the magistrate judge erred in applying the

decision in Sandin retroactively, and that under prior Supreme Court decisions he

was denied procedural due process. On the issue of retroactivity, the Supreme Court

has held:

“When this Court applies a rule of federal law to the parties before it,
that rule is the controlling interpretation of federal law and must be
given full retroactive effect in all cases still open on direct review and

2
The magistrate report states: “[T]he failure to file written
objections to the proposed findings and recommendations within ten days
after being served with a copy may bar the aggrieved party from appealing
the factual findings of the Magistrate Judge that are accepted or adopted by
the District Court.” Rec., vol. I, doc. 94 at 12 (emhasis added).

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 as to all events, regardless of whether such events predate or postdate
our announcement of the rule.”

Harper v. Virginia Dep’t of Taxation, 509 U.S. 86, 97 (1993); see also Reynoldsville

Casket Co. v. Hyde, 115 S. Ct. 1745, 1748 (1995).

In Sandin, the Court held that the plaintiff’s discipline in segregated

confinement was not the sort of atypical, significant deprivation that would give rise

to a liberty interest entitled to due process protection. 115 S. Ct. at 2300. The Court

further held that because the disciplinary action would not inevitably affect the

duration of plaintiff’s sentence under state parole regulations, procedural due process

protection was not required. Id. at 2302. Significantly, the Court applied these

holdings to the parties in that case. Under these circumstances, we agree with our

sister circuits that Sandin is to be given retroactive application. See Samuels v.

Mockry, 77 F.3d 34, 37 (2d Cir. 1996) (per curiam); Domimique v. Weld, 73 F.3d

1156, 1160 n.6 (1st Cir. 1996); Mujahid v. Meyer, 59 F.3d 931, 932 n.2 (9th Cir.

1995) (per curiam). The magistrate judge thus did not err in applying Sandin to Mr.

Talley’s due process claims. 3

Sandin makes clear that placement in administrative segregation such as

occurred here does not give rise to a liberty interest. As a consequence, the

procedures involved need not comply with procedural due process. Mr. Talley’s due

3
Mr. Talley does not dispute the magistrate’s determination that the
due process claims are without merit under Sandin.

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process claims are therefore foreclosed.

The judgment of the district court is AFFIRMED. Judge Kelly concurs in the

result only.

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