                                                                         F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                        October 17, 2006
                                TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                       Clerk of Court

 SHANE BURDEN,
              Plaintiff-Appellant,                       No. 05-1530
 v.                                          (D.C. No. 04-cv-02300-W YD-PAC)
 ROBERT W OOD (20883),                                    (D . Colo.)
 W estminster Police Officer, acting in
 his official capacity,
              Defendant-Appellee.



                           OR D ER AND JUDGM ENT *


Before K ELLY, M cK AY, and LUCERO, 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      Appellant raises three claims under 42 U.S.C. § 1983: (1) police brutality;

(2) “malita assault,” which the magistrate judge and district court interpreted as

an excessive force claim; and (3) “abuse of authority,” which the magistrate judge



      *
       This order and judgment is not binding precedent, except under the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.
and district court interpreted as a claim for false arrest. All three claims arise

from Appellant’s arrest on June 23, 2004. Appellant makes very few specific

allegations in his complaint, but he does claim that Appellee tackled him and

repeatedly smashed his head into the ground.

      According to the M artinez report filed by the government, Appellee was

driving an unmarked police vehicle through a parking lot when he saw Appellant

run through the lot and hide behind a wood fence. See Recommendation of

United States M agistrate Judge, Doc. 74 at 2 (D. Colo. Sept. 30, 2005). Appellee

approached Appellant, identified himself as a police officer, and observed that

Appellant had a bag of white powdery substance which Appellant identified as

speed. Id. After calling for backup, Appellee and another officer, despite

Appellant’s resistance, arrested Appellant and took him to the police department

for booking. Id. at 2-3. Because the arresting officers suspected that Appellant

had ingested what Appellant identified as speed, they sent him to a local hospital

after booking. Id. at 3. According to the M artinez report, Appellant did not

complain of any injuries when at the hospital. Id. Appellant was later convicted

of obstructing a police officer in relation to the June 23 arrest. Id. at 4.

      Appellee filed for summary judgment arguing (1) that the false arrest claim

fails under Heck v. Humphrey, 512 U.S. 477 (1994), and (2) that he is entitled to

qualified immunity on all claims. The magistrate judge recommended that

summary judgment be granted on each of Appellant’s claims. Recommendation

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at 6. First, the magistrate judge noted that to prevail on a claim for false arrest

under Heck, a “‘plaintiff must prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive order, declared invalid’ or

otherwise called into question by some other tribunal.” Id. at 4 (quoting Heck,

512 U.S. at 486-87). Because Appellant was ultimately convicted of obstructing a

police officer, he cannot pursue this claim. Second, the magistrate judge also

noted that Appellee is entitled to qualified immunity if his actions did not

“‘violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Id. at 5 (quoting Harlow v. Fitzgerald,

457 U.S. 800, 818 (1982)). Since Appellee has asserted a qualified immunity

defense, Appellant must refute this claim. See Scull v. New M exico, 236 F.3d

588, 595 (10th Cir. 2000). Appellant has made no effort to rebut Appellee’s

claim of qualified immunity.

      In fact, after filing his § 1983 action, Appellant made little effort to follow

up on his obligations to the court. The magistrate judge set a date for a hearing to

resolve Appellee’s motion to compel discovery, but Appellant did not appear and

the two notices of the hearing sent to Appellant were returned as undeliverable, as

was the notice of the magistrate judge’s order to compel discovery.

Recommendation at 2. Appellant never informed the court of a change of

address. Id. Neither did Appellant timely file any objections to the magistrate

judge’s recommendation. Order Adopting and Affirming Recommendation of

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United States M agistrate Judge, Doc. 75 at 2 (D. Colo. Nov. 1, 2005). The

district court reviewed the recommendation for clear error and, finding none,

adopted the magistrate judge’s recommendation. Id. Finally, on November 8,

2005, Appellant filed with the district court what we construe as a motion to

reconsider. See Order, Doc. 79 at 1 (D . Colo. Nov. 10, 2005). The district court

denied A ppellant’s motion because “[t]he case is now concluded on the merits,

and it is too late for Plaintiff to file objections to any action taken by [the

magistrate judge].” Id.

      W e have carefully reviewed the briefs of both Appellant and Appellee, the

magistrate judge’s recommendation, the district court’s orders, and the record on

appeal. For substantially the same reasons set forth by the magistrate judge in her

recommendation and the district court in its orders, we AFFIRM the district

court’s dismissal of Appellant’s claims. W e GRANT Appellant’s M otion for

Leave to Proceed on appeal W ithout Prepayment of Costs or Fees, and we remind

Appellant of his obligation to continue making payments until the entire fee has

been paid.

                                                 Entered for the Court



                                                 M onroe G. M cKay
                                                 Circuit Judge




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