19 F.3d 34
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Paul Luna VASQUEZ, Plaintiff-Appellant,
and
Thomas M. TOOTHMAN, Donald L. Mora, Donald L. Burton,
Jeffery A. Anshutz, Willie T. Hayes, and John A.
v.
Roy ROMER, Governor; Colorado General Assembly; Christine
Moschetti; Donna Thurlow; John R. Enright;
Velma M. Garner; and Don Alders,
Defendants-Appellees.
No. 93-1380.
United States Court of Appeals, Tenth Circuit.
March 21, 1993.
Before MOORE, ANDERSON, and KELLY, Circuit Judges.
ORDER AND JUDGMENT1
MOORE
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 cause is therefore ordered submitted without oral argument.
Paul Luna Vasquez appeals from a judgment dismissing his complaint, ostensibly for failure to state a claim, upon the recommendation of a magistrate judge. Mr. Vasquez was one of four plaintiffs filing identical 42 U.S.C.1983 claims whose complaints were consolidated in the district court. Mr. Vasquez is the only plaintiff to appear in this court.
Although Mr. Vasquez asserts he appears here as a class representative, no class was certified in the district court. Inasmuch as Mr. Vasquez is not admitted to the practice of law, he has no authority to appear in any representative capacity in this court. Thus, Mr. Vasquez is the only party presently before us. Because of our disposition, however, the failure of the other plaintiffs to properly perfect their appeals is harmless.
We have examined Mr. Vasquez' brief and the record before us and have concluded the magistrate judge correctly analyzed the issues and the district court did not err in adopting his recommendation.
We note because the case was disposed of on the law, Mr. Vasquez was not entitled, as he claims, to an evidentiary hearing. Such a hearing would have had no effect on the controlling law which led to the dismissal of the complaint. Furthermore, Mr. Vasquez' assertion the district court misconstrued the facts is unsubstantiated because the district court took the facts asserted in the complaint and applied the law to them. This is not erroneous.
The judgment of the district court is AFFIRMED for the reasons stated in the recommendation of the magistrate judge. The mandate shall issue forthwith.
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 the court's General Order filed November 29, 1993. 151 F.R.D. 470
