48 F3d 1231 Diamond II v. Long

Curtis M. DIAMOND, II, Plaintiff-Appellant,
John Richard LONG, Defendant-Appellee.

No. 94-6426.

United States Court of Appeals, Tenth Circuit.

March 3, 1995.

48 F.3d 1231
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before MOORE, BARRETT, and EBEL, Circuit Judges.


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After examining the briefs and appellate record, this panel has determined unanimously to honor the parties' request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.


Plaintiff-Appellant Curtis M. Diamond, III, appearing pro se, and in forma pauperis, appeals from the district court's order adopting the Report and Recommendation of the United States Magistrate Judge, over his objection, and in dismissing his 42 U.S.C.1983 complaint as frivolous and without merit.


Plaintiff, an inmate of the Oklahoma County jail, filed his 1983 complaint against defendant John Richard Long simply identifying Long as a citizen of the State of Oklahoma who was alledgedly acting under state law when he deceived and lied to the Oklahoma City Police Department resulting in the arrest of plaintiff on charges of robbery, kidnapping, extortion, burglary and auto theft. Plaintiff did not allege any facts supporting his bald allegation that defendant was a state actor.


In his objection to the magistrate judge's Report and Recommendation, plaintiff simply invoked Haines v. Kerner, 404 U.S. 519 (1972), for the rule that the courts must construe his pleadings liberally. He did not, however, in any way further identify the status of defendant as a state actor; rather, he repeated his request for an evidentiary hearing to prove that defendant committed slander and libel leading to plaintiff's false arrest and imprisonment. (R., Vol. I, Tab 7).


We affirm the order of the dismissal entered by the district court substantially for the reasons set forth in the magistrate judge's "Report and Recommendation" filed October 27, 1994. (Id., Tab 6).


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 the court's General Order filed November 29, 1993. 151 F.R.D. 470