                                                         FILED
                                              United States Court of Appeals
                                                      Tenth Circuit

                                                      July 6, 2009
               UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                      FOR THE TENTH CIRCUIT          Clerk of Court



ALLEN Z. WOLFSON,

          Plaintiff-Appellant,
v.                                          No. 08-4218
                                    (D.C. No. 2:06-CV-00994-DB)
UNITED STATES OF AMERICA;                     (D. Utah)
DAVID ESSEKS, individually;
THOMAS MELTON, individually;
KAREN L. MARTINEZ, individually;
CHRISTOPHER PAIK, individually;
HOLLAND & HART; SARAH G.
SCHWARTZ, individually; BONNIE
KARTZMAN, individually; MARK
HIRATA, individually; AVRAHAM
MOSKOWITZ, individually;
CHRISTOPHER BRUNO,
individually; ROBERT HOTZ,
individually; DAVID K.
BROADBENT, individually,

          Defendants-Appellees.


ALLEN Z. WOLFSON,

          Plaintiff-Appellant,

v.                                          No. 08-4219
                                    (D.C. No. 2:07-CV-00219-DB)
SECURITIES AND EXCHANGE                       (D. Utah)
COMMISSION; UNITED STATES
OF AMERICA; HOLLAND & HART;
THOMAS MELTON; DAVID
    ESSEKS; MICHAEL GARCIA;
    CHRISTOPHER BRUNO; GINO
    CARLUCCI; ROBERT HOTZ;
    DAVID K. BROADBENT,

              Defendants-Appellees.


                           ORDER AND JUDGMENT *


Before KELLY, McKAY, and BRISCOE, Circuit Judges.



       We have consolidated these appeals for purposes of disposition.

Mr. Wolfson filed these actions pro se alleging violations of his civil rights. In

each case, he charged that the defendants had improperly imprisoned him and had

seized his assets without notice or hearing in violation of the Fifth and Fourteenth

Amendments.

       The district court permitted him to proceed in forma pauperis (IFP). See

28 U.S.C. § 1915. A magistrate judge assigned to the cases recommended that

they be dismissed under 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), reasoning that



*
       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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

                                         -2-
Mr. Wolfson’s allegations concerning the purported improper seizure and sale of

his assets failed to state a claim, and that his remaining claims were frivolous.

After considering Mr. Wolfson’s objections to the magistrate judge’s report, the

district court dismissed both cases.

      On appeal, Mr. Wolfson challenges only the dismissal of his claims

regarding the receiver’s seizure and sale of his assets. His complaint recites that

these actions were taken without due process of law. The district court, taking

judicial notice of the pleadings in the receivership action that resulted in the

seizure, determined that “the assets at issue were under the control and ownership

of [Mr. Wolfson’s son,] David Wolfson.” District Court Order, at 3 (emphasis

added). It therefore concluded that Mr. Wolfson failed to state a claim in these

actions based on improper seizure of his assets. We affirm the district court’s

decision to dismiss the due process claims, but for a slightly different reason.

      In his motion to intervene in the prior receivership action, Mr. Wolfson

asserted that when he went to prison, he gave his son power of attorney over his

assets. The Securities and Exchange Commission (SEC) then filed a civil

enforcement action against his son and others, charging that they had transferred a

large amount of funds from defrauded investors into assets including those that

Mr. Wolfson now claims as his own. The court in the civil enforcement action

appointed a receiver to deal with these assets. Mr. Wolfson’s son entered into a


                                          -3-
consent decree in which he conveyed his interest in the property to the receiver.

Mr. Wolfson alleges that the receiver improperly used the consent decree to seize

properties for which his son held only power of attorney on his behalf.

      At the core of due process are the requirements of notice and a meaningful

opportunity to be heard. Mullane v. Central Hanover Bank & Trust Co., 339 U.S.

306, 313 (1950). The pleadings in the receivership action, together with

Mr. Wolfson’s representations, demonstrate that these requisites have been

satisfied. He does not contest the fact that his son, who by his own admission

held power of attorney for him, received notice and had an opportunity to be

heard prior to the seizures. See United States v. All Monies from Account

No. PO-204,675.0, No. 97-1250, 1998 WL 769811, at *2-*3 (10th Cir. Oct. 29,

1998) (holding that incarcerated claimant asserting beneficial interest in bank

account received constitutionally adequate notice of pending forfeiture when

notice was mailed to law firm that had power of attorney for claimant, and to

bank that held the funds). In addition, Mr. Wolfson had the opportunity to be

heard personally through a timely motion to intervene in the receivership action,

which he forfeited by his untimely motions. Finally, the government has provided

a post-deprivation procedure in which Mr. Wolfson can participate, by making a

claim and disputing the receiver’s proposed disposition of receivership assets. In

re SEC (Wolfson v. Broadbent), 296 F. Appx. 637, 640 (10th Cir. 2008), cert.


                                         -4-
denied, 129 S. Ct. 1323 (2009). The district court therefore correctly dismissed

Mr. Wolfson’s due process claims for failure to state a claim.

      Mr. Wolfson also argues that the district court should not have dismissed

his complaints pursuant to the Prison Litigation Reform Act (PLRA), because he

was not a “prisoner” within the meaning of the statute. Mr. Wolfson sought and

obtained IFP status in the district court, representing himself as someone who

“meets all the requirements of [PLRA].” R., No. 08-4219, Vol. II at 1.

Notwithstanding this prior representation, he now contends that he “is not

consider[ed] a prisoner because he was on administrative hold waiting to be

sentenced” and was then civilly committed rather than made a “prisoner.” Aplt.

Br., No. 08-4218, at 21; No. 08-4219, at 21. But he did not make this argument

in his objections to the magistrate judge’s report and recommendation, which

recommended that his claims be dismissed under § 1915(e)(2)(B). Therefore, the

argument is waived and we will not consider it. See, e.g., Morales-Fernandez v.

INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (stating party who fails to object to

magistrate judge’s findings and recommendations waives appellate review of

factual and legal issues).

      To the extent Mr. Wolfson argues that PLRA does not apply to him for

purposes of prosecuting this appeal, because he has been sentenced under

18 U.S.C. § 4244(d) to civil commitment until he regains competency, we must


                                        -5-
also reject his argument. As used in § 1915, the term “prisoner” means “any

person incarcerated or detained in any facility who is accused of, convicted of,

sentenced for, or adjudicated delinquent for, violations of criminal law or the

terms and conditions of parole, probation, pretrial release, or diversionary

program.” 28 U.S.C. § 1915(h) (emphasis added). A person sentenced under

§ 4244(d) is to be hospitalized “for care or treatment in a suitable facility” and his

“commitment constitutes a provisional sentence of imprisonment to the maximum

term authorized by law for the offense for which the defendant was found guilty.”

18 U.S.C. § 4244(d). A person civilly committed pursuant to § 4244(d) therefore

qualifies as a “prisoner” for purposes of PLRA. 1




1
       The cases Mr. Wolfson cites to the contrary are inapplicable. Page v.
Torrey, 201 F.3d 1136 (9th Cir. 2000), involved a detainee who had been civilly
committed under California’s Sexually Violent Predators Act after he finished
serving his criminal sentence. Kolocotronis v. Morgan, 247 F.3d 726 (8th Cir.
2001), involved an inmate who was held in a state hospital after being found not
guilty by reason of insanity. Agyeman v. I.N.S., 296 F.3d 871 (9th Cir. 2002) and
LaFontant v. I.N.S., 135 F.3d 158 (D.C. Cir. 1998), concerned alien detainees
who were not facing criminal charges.

                                          -6-
      The judgment of the district court is AFFIRMED. Mr. Wolfson’s motion to

proceed in forma pauperis is GRANTED. His “Objection to Status of Prisoner as

Defined by the PLRA” is DENIED and the clerk’s office is directed to issue an

order in Case No. 08-4218 assessing partial payments. In Case No. 08-4219,

Mr. Wolfson was previously ordered to make partial payments and we remind him

that he remains obligated to continue making partial payments until his filing fee

is paid in full. See 28 U.S.C. § 1915(b)(1).


                                                    Entered for the Court



                                                    Mary Beck Briscoe
                                                    Circuit Judge




                                         -7-
