                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                            FOR THE TENTH CIRCUIT                         August 14, 2015
                        _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
EDWARD V. RAY, JR.,

     Plaintiff - Appellant,

v.                                                        No. 15-6040
                                                  (D.C. No. 5:13-CV-00092-HE)
MRS. BRADFORD; MS. HAGERMAN;                              (W.D. Okla.)
R. FERGUSON; C/O HABSEN,

     Defendants - Appellees.
                     _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before KELLY, LUCERO, and McHUGH, Circuit Judges.
                  _________________________________

      Edward Ray, a state prisoner proceeding pro se,1 appeals the dismissal of his

42 U.S.C. § 1983 suit. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
        Because Ray is proceeding pro se, we construe his filings liberally. See Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
                                          I

      Ray is a California state prisoner who was incarcerated at the North Fork

Correctional Center in Oklahoma during the time pertinent to this case. In his

complaint, Ray avers that defendants, North Fork employees, violated his First, Fifth,

Eighth, and Fourteenth Amendment rights by seizing his mail, imposing various

punishments and restrictions on him, and increasing his custody level.

      A magistrate judge ordered that defendants complete a Martinez report

addressing Ray’s contentions. See Martinez v. Aaron, 570 F.2d 317, 318-19 (10th

Cir. 1978). Defendants simultaneously submitted the Martinez report and moved to

dismiss. The district court partially adopted a report and recommendation from the

magistrate judge recommending dismissal. It dismissed Ray’s complaint in part but

permitted him leave to amend. After Ray filed an amended complaint, the defendants

again moved to dismiss, referencing the previously-filed Martinez report and

attachments. In his response to this second motion to dismiss, Ray attached several

exhibits. The magistrate judge recommended that the second motion to dismiss be

converted to a motion for summary judgment and that it be granted. Ray filed an

objection to the magistrate judge’s report and recommendation. The district court

adopted the findings and conclusions of the magistrate’s second report, converted the

motion to dismiss into a motion for summary judgment, and granted the motion for

summary judgment. Ray timely appealed.




                                         -2-
                                           II

      “We review for an abuse of discretion a district court’s decision to consider

evidence beyond the pleadings and convert a motion to dismiss to a motion for

summary judgment.” Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d

648, 654 (10th Cir. 2002). The ensuing grant of summary judgment is reviewed de

novo. Id. at 655.

      Because Ray raised only two objections in his response to the magistrate’s

report and on appeal, he has waived all other issues. See Cohen v. Longshore, 621

F.3d 1311, 1318 (10th Cir. 2010) (“[T]he failure to make timely objections to the

magistrate’s findings or recommendations waives appellate review of both factual

and legal questions.” (quotation omitted)).

      In his first objection, Ray argues that Tenth Circuit precedent should not be

applied to him because he is a California state prisoner. However, because Ray

brought his suit in a federal court within the Tenth Circuit, Tenth Circuit precedent

applies. Cf. Beaudry v. Corr. Corp. of Am., 331 F.3d 1164, 1165-66 (10th Cir. 2003)

(applying Tenth Circuit precedent to resolve suit filed by Wisconsin inmates

incarcerated at North Fork); see also Mitchell v. Figueroa, 489 F. App’x 258, 259-60

(10th Cir. 2012) (unpublished) (applying Tenth Circuit precedent to resolve § 1983

suit filed by California state prisoner also incarcerated at North Fork).2


      2
        Moreover, because the California Department of Corrections and
Rehabilitation makes determinations concerning transfers and prisoner complaints
involving California state prisoners incarcerated at North Fork, the district court

                                           -3-
      Ray also contends that he was unfairly prejudiced by the decision to convert

defendants’ motion to dismiss into a motion for summary judgment. But Ray filed

materials outside the pleadings in response to that motion, and therefore cannot assert

that its conversion was unfair. See Arnold v. Air Midwest, Inc., 100 F.3d 857, 859

n.2 (10th Cir. 1996) (explaining that a party who “submitted material beyond the

pleadings in opposition to defendants’ motion [to dismiss] . . . is scarcely in a

position to claim unfair surprise or inequity”); see also Lamb v. Rizzo, 391 F.3d

1133, 1137 n.3 (10th Cir. 2004) (reaching similar conclusion).

                                           III

      The judgment of the district court is AFFIRMED. We GRANT Ray’s motion

to proceed in forma pauperis, and remind him of his obligation to continue

making partial payments until the fees are paid in full.3



                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




considered California regulations and case law interpreting them when resolving
Ray’s claim that North Fork officials violated those regulations. It did not base its
decision on Oklahoma law.
      3
       Ray has also requested that we take judicial notice of his amended complaint.
Because that document is already contained in the record on appeal, his request is
DENIED as moot.

                                           -4-
