Académique Documents
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OCT 29 2002
PATRICK FISHER
Clerk
ERNEST E. WALKER,
Plaintiff - Appellant,
v.
OFFICER DISNER; JOHN DOE OF
ARAPAHOE COUNTY DETENTION
FACILITY,
No. 02-1020
D.C. No. 00-S-1931
(D. Colorado)
Defendants - Appellees.
ORDER AND JUDGMENT
Before KELLY and BALDOCK , Circuit Judges, and
Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
This order and judgment is not binding precedent, except under the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.
district courts order dismissing his amended complaint alleging, under 42 U.S.C.
1983, that Officer Edward Disner, a Sheridan, Colorado, police officer, and
an unidentified John Doe violated his civil rights.
recommended that the complaint be dismissed under Fed. R. Civ. P. 12(b)(6) for
failure to state a claim upon which relief could be granted. By separate order, the
magistrate judge denied Mr. Walkers motion to amend his complaint for a third
time. The district court affirmed the denial of the motion to amend and, adopting
the magistrate judges recommendation, dismissed the complaint. We affirm.
We review de novo the district courts grant of a [Rule] 12(b)(6) motion
to dismiss, bearing in mind that all well-pleaded allegations in the complaint are
accepted as true and viewed in the light most favorable to the nonmoving party.
Stidham v. Peace Officer Standards & Training
2001) (quotation and alteration omitted). The district court thoroughly and
John Doe remains unknown and unserved. The district court informed
Mr. Walker by order dated December 20, 2000, that he must provide sufficient
information so that this defendant could be identified. Mr. Walker never provided
further identifying information. Mr. Walker has waived his right to appellate
review of the dismissal of this John Doe defendant because he did not raise any
objections to the dismissal of this defendant in his objections to the magistrate
judges report and recommendation,
see Key Energy Res. Inc. v. Merrill (In re
Key Energy Res. Inc.) , 230 F.3d 1197, 1199-1200 (10th Cir. 2000), or in his
opening brief on appeal, see Coleman v. B-G Maint. Mgmt. of Colo., Inc.
, 108
F.3d 1199, 1205 (10th Cir. 1997).
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Payton v. New York , 445 U.S. 573, 590 (1980). Here, Mr.
Walker admits that the police responded to a call of a suspected burglary and
were told by the apartment maintenance manager that an unwanted person was in
the apartment. He admits that he manipulated the locks to enter the apartment
and that he did not respond to the officers initial knock. Because the officers
had received a burglary call, and upon arriving at the apartment, observed signs
of a burglary, Officer Disners entry into, and brief search of, the apartment
were lawful pursuant to the emergency exception to the warrant requirement.
United States v. Tibolt , 72 F.3d 965, 970-71 (1st Cir. 1995) (holding that
responding to report of possible burglary is exigent circumstance authorizing
warrantless entry into home).
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See
See
Officer Disners motion to dismiss had been pending for two months when
Mr. Walker filed his motion to amend. He did not detail the changes he sought
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to make in his amended complaint or offer any justification for the proposed
amendment. We find no abuse of discretion.
We AFFIRM the district courts judgment. We remind Mr. Walker to
continue making partial payments until the entire balance of the appellate
filing fee is paid.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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