Rozeboom v. City of Broken Arrow, (10th Cir. 1999)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

PAUL T. ROZEBOOM, individually

and as next friend of Tara Lynn

Rozeboom, his minor daughter, and as

a member of the Class of Male

Participants in Domestic Relations

Dispute in Broken Arrow OK nfr Tara

Lynn Rozeboom,

Plaintiff-Appellant,

v.

CITY OF BROKEN ARROW; J. R.

STOVER, aka Smokey; RICK

HOLDEN; EZELL WARE; BROKEN

ARROW POLICE DEPARTMENT,

sued as: Booking Officer (12/15/95,

3PM) of Broken Arrow Police Dept.;

PAULA J. SCHAFER,

Defendants-Appellees.

No.
name="1">98-5217

(D.C. No. 97-CV-199)

(N.D. Okla.)

ORDER AND JUDGMENT
name="txt*">(*)

Before TACHA, McKAY, and

MURPHY, 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.

Plaintiff-appellant Paul T. Rozeboom appeals the grant of summary

judgment entered by the district court on his claims brought under 42 U.S.C. §§ 1983, 1985 and 1986, and various state laws. Plaintiff's suit arose from

circumstances surrounding his arrest and detention by various officials of the

Broken Arrow, Oklahoma, Police Department. "We review the grant or denial of

summary judgment de novo, applying the same legal standard used by the district

court pursuant to Fed. R. Civ. P. 56(c). Summary judgment is appropriate if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law."

Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir. 1996) (quotation omitted). After

applying this standard, we affirm for substantially the reasons stated by the

district court in its thorough and well-reasoned order of September 28, 1998.

In their answer brief to this court, defendants argue that the district court

erred in dismissing plaintiff's state law claims without prejudice. Defendants

contend that, because the claims were time-barred, they should have been

dismissed with prejudice. Defendants are attempting to mount a cross-appeal to a

portion of the district court's judgment. However, because defendants did not file

a timely notice of appeal, we do not have jurisdiction to address this issue. See

Savage v. Cache Valley Dairy Ass'n, 737 F.2d 887, 889 (10th Cir. 1984) (holding

that "the filing of a timely cross-appeal is mandatory and jurisdictional").

The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Michael R. Murphy

Circuit Judge

FOOTNOTES

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*. 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.

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