                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       February 7, 2006
                               TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                         Clerk of Court

 DAVID S. PETERSON,
             Plaintiff-Appellant,                       No. 04-2318
 v.                                         (D.C. No. CIV-02-1487 MCA/ACT)
 IRMA LUCERO, Warden, Western                          (D. New Mex.)
 New Mexico Correctional Facility;
 CARL TOERSBIGNS; THERESA
 MARQUEZ; JOHN SHANKS,
 Director, Adult Prison System; JERRY
 TAFOYA; TIM LEMASTER, Warden,
 New Mexico State Penitentiary,
             Defendants-Appellees.


                          ORDER AND JUDGMENT *


Before HENRY, McKAY, and EBEL, Circuit Judges.



      After examining the briefs and the 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       This order and judgment is not binding precedent, except under the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, a state prisoner in New Mexico, filed this case under 42 U.S.C.

§ 1983 and alleged various constitutional violations. On November 11, 2005,

over the Appellant’s objections, the district court adopted the Proposed Findings

and Recommended Disposition of the magistrate judge. Six days later Appellant

filed his notice of appeal, which we now review, pursuant to 28 U.S.C. § 1915

and Federal Rule of Appellate Procedure 24. Since his incarceration in 1988,

Appellant has filed in excess of forty law suits in state and federal courts.

      Appellant’s original civil rights complaint in this case was filed on

November 25, 2002, in New Mexico District Court. The complaint named six

defendants, all employees of the New Mexico Corrections Department. The

complaint alleged that the defendants retaliated against Appellant for exercising

his right to free speech, inflicted cruel and unusual punishment, and denied him

due process.

      The district court dismissed the majority of Appellant’s claims for failure to

state a claim upon which relief can be granted in a Memorandum Opinion and

Order entered April 9, 2003. The court dismissed Appellant’s claim of a due

process violation relating to his classification and transfer along with his claims

of denial of access to the courts, denial of free process, violation of the state open

meetings act, and destruction of personal property. In a subsequent order

addressing the Appellant’s objections, the court also dismissed Appellant’s claims


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arising from the denial of newspapers and claims concerning visitation rights.

      Two claims were not dismissed—a retaliation claim for violation of the

First Amendment and a cruel and unusual punishment claim for violation of the

Eighth Amendment. On April 1, 2004, the discovery process began, and the

district court ordered the Defendants to compile a Martinez report. Martinez v.

Aaron, 570 F.2d 317 (10th Cir. 1978). Appellant continued to file discovery

requests and moved to amend his complaint during the time the Martinez report

was being prepared. On June 18, 2004, the district court issued a protective order

staying Appellant’s discovery requests until the Martinez report was completed.

After the report was completed, Appellant continued to make discovery requests

and filed motions to compel that the district court denied. On October 6, 2005,

Appellant submitted his response to the Martinez report, alleging that it was

incomplete, and stressed his objections to the earlier discovery rulings. A

magistrate judge, after reviewing the Martinez report and Appellant’s response,

issued his Proposed Findings and Recommended Disposition, recommending

summary judgment in favor of the Defendants on the remaining two claims.

      Specifically, the magistrate judge found that Appellant’s alleged claims of

retaliation (in the form of searching his cell and confiscating legal papers

belonging to other prisoners) was not a result of the Defendant, Warden Irma

Lucero, having been served with a subpoena by Appellant. The magistrate judge


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also stated that “[a] review of the misconduct report does not establish any facts

that would give rise to a claim of cruel and unusual punishment or a claim of

retaliation.” Proposed Findings and Recommended Disposition, 8.

      Appellant filed an objection to the recommendation by the magistrate

judge, but the district court adopted the Proposed Findings and Recommended

Disposition. Order and Judgment, 1 (Nov. 24, 2004, D.N.M).

      We review both the district court’s dismissals for failure to state a claim

and grants of summary judgment de novo. Elliott Indus. v. BP Am. Prod. Co., 407

F.3d 1091, 1106-07 (10th Cir. 2005). We have carefully reviewed the briefs of

Appellant and Appellees, the magistrate’s judge’s findings and district court’s

disposition, and the record on appeal. We are in accord with the district court’s

dismissals and summary judgment ruling, and for substantially the same reasons

set forth by the district court in its Memorandum Opinion and Order of April 9,

2003, and its Order and Judgment of November 24, 2004, we AFFIRM the

district court’s dismissal with prejudice of Appellant’s § 1983 complaint.


                                               Entered for the Court


                                               Monroe G. McKay
                                               Circuit Judge




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