                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 19 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    TRACY MATTHEWS, an individual,

                Plaintiff-Appellant,
                                                         No. 03-1203
    v.                                         (D.C. Nos. 00-M-897, 00-M-1616,
                                                   00-M-1617, 01-M-134)
    JOHN POTTER, Postmaster General,                       (D. Colo.)
    United States Postal Service,

                Defendant-Appellee.


                            ORDER AND JUDGMENT            *




Before LUCERO , McKAY , and TYMKOVICH , 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.




*
      This order and judgment is not binding precedent, except under the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.
       Appellant Tracy Matthews challenges orders of the district court

1) granting summary judgment to defendant s on all claims in his four

consolidated cases; and 2) limiting discovery. Our jurisdiction over this appeal

arises from 28 U.S.C. § 1291. We review the district court’s         summary judgment

ruling de novo , applying the same standards as did the district court in

determining appellant’s claims.          See Simms v. Okla. ex rel. Dep’t of Mental

Health & Substance Abuse Servs.          , 165 F.3d 1321, 1326 (10th Cir. 1999). Our

review of the court’s discovery rulings, however, is limited to determining

whether the court abused its discretion.        See GWN Petroleum Corp. v. OK-Tex Oil

& Gas, Inc. , 998 F.2d 853, 858 (10th Cir. 1993). Because appellant proceeds pro

se, we liberally construe his filings.       Cummings v. Evans , 161 F.3d 610, 613 (10th

Cir. 1998). However, we will not imply factual allegations or create legal

theories on a pro se plaintiff’s behalf.       Whitney v. New Mexico , 113 F.3d 1170,

1173-74 (10th Cir. 1997).

       We have carefully reviewed the record in these consolidated cases, together

with the parties’ briefs, in light of these standards and applicable law. We note

that appellant has raised arguments and theories which were not preserved for

appeal, either because they were not raised to the district court or because they

were not preserved by inclusion in appellant’s objections to the magistrate judge’s

recommendation on his claims, later adopted by the district court. Therefore, we


                                                -2-
decline to consider these arguments.     See Walker v. Mather (In re Walker)       ,

959 F.2d 894, 896 (10th Cir. 1992);    Whitehead v. Okla. Gas & Elec. Co.      ,

187 F.3d 1184, 1190 (10th Cir. 1999)     . In light of appellant’s remaining

arguments, we conclude that the district court correctly granted    summary

judgment to defendant s in these consolidated cases and that the district court’s

discovery rulings were not an abuse of its discretion. For substantially the same

reasons contained in the magistrate judge’s thorough and careful recommendation,

adopted by the district court, the judgment of the district court is AFFIRMED.

Appellant’s “Motion to Amend” his appeal to include certain discovery rulings is

GRANTED. The mandate shall issue forthwith.



                                                        Entered for the Court



                                                        Monroe G. McKay
                                                        Circuit Judge




                                            -3-
