Filed: May 17, 2005
Latest Update: Feb. 21, 2020
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 17 2005 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk RONALD L. CALVERT, Plaintiff-Appellant, No. 04-1430 v. (D.C. No. 00-BB-294 (MJW)) (D. Colo.) ROADWAY EXPRESS INC., Defendant-Appellee. ORDER AND JUDGMENT * Before EBEL , McCONNELL , and TYMKOVICH , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determi
Summary: F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 17 2005 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk RONALD L. CALVERT, Plaintiff-Appellant, No. 04-1430 v. (D.C. No. 00-BB-294 (MJW)) (D. Colo.) ROADWAY EXPRESS INC., Defendant-Appellee. ORDER AND JUDGMENT * Before EBEL , McCONNELL , and TYMKOVICH , Circuit Judges. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determin..
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F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 17 2005
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RONALD L. CALVERT,
Plaintiff-Appellant,
No. 04-1430
v. (D.C. No. 00-BB-294 (MJW))
(D. Colo.)
ROADWAY EXPRESS INC.,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL , McCONNELL , and TYMKOVICH , 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.
*
This order and judgment is not binding precedent, except under the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.
Plaintiff-appellant Ronald L. Calvert, appearing pro se, appeals from the
magistrate judge’s grant of summary judgment to defendant-appellee Roadway
Express Inc. on his claims of race discrimination and retaliation under Title VII,
42 U.S.C. §§ 2000e to 2000e-17, and disability discrimination under the
Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213. We have
jurisdiction under 28 U.S.C. § 1291.
The case was decided by Magistrate Judge Boyd N. Boland by consent of
the parties. See 28 U.S.C. § 636(c)(1); R. doc. 62. Appellant does not challenge
the magistrate judge’s decision to grant summary judgment to appellee. We will
neither manufacture arguments for a party nor sift through the record to find
support for a party’s arguments. Sil-Flo, Inc. v. SFHC, Inc. ,
917 F.2d 1507, 1513
(10th Cir. 1990). We therefore affirm, without discussion, the magistrate judge’s
decision to grant summary judgment to appellee.
Appellant raises three issues on appeal. First, appellant argues that defense
counsel James J. Gonzales should be removed from the case because he allegedly
obtained certain documents in violation of the Health Insurance Portability and
Accountability Act of 1996 (HIPAA), Pub. L. 104-191, 110 Stat. 2087-2088, and
used them at appellant’s deposition in another case on April 5, 2001. Next,
appellant argues that Magistrate Judge Boland should be recused because he
allegedly remarked to Mr. Gonzales at a hearing on June 24, 2003: “you might
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want to check on a criminal record while you’re at it,” allegedly implying that
appellant had a criminal record. Aplt. Br. at 2. Finally, appellant argues that a
discovery protective order should be dismissed without prejudice because it
prevented him from obtaining documents relevant to his discrimination claim.
Appellant’s challenge to the discovery of certain medical records used at
his deposition in another case in 2001 is without merit. Appellant concedes that
the deposition was in another case, appellant fails to demonstrate that the
documents were not lawfully in appellee’s possession at that time, and appellant
has not shown that HIPAA applied at that time, see 45 C.F.R. § 164.534.
We also reject appellant’s challenge to Magistrate Judge Boland’s
participation in this case. Appellee provided transcripts from the June 24, 2003
and November 4, 2003 hearings at which appellant’s medical records were
discussed. The transcripts show that Magistrate Judge Boland did not make the
remark at either hearing that appellant attributes to him. See Aplee. App. at 1-15,
16-48. Thus, there is no evidence of bias to support recusal.
Finally, we reject appellant’s challenge to the discovery protective order
because he failed to comply with Fed. R. Civ. P. 56(f). “Where a movant has met
the initial burden required for a grant of summary judgment, the opposing party
must either establish the existence of a triable issue of fact under Fed. R. Civ. P.
56(e) or explain why he cannot present facts to justify his opposition under Rule
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56(f).” Pasternak v. Lear Petroleum Exploration, Inc. ,
790 F.2d 828, 832 (10th
Cir. 1986). Thus, when appellee moved for summary judgment, appellant was
required to object to the alleged obstacle to discovery under Rule 56(f) in the
district court, rather than to wait to raise it on appeal as a challenge to the grant
of summary judgment. See
id. at 832-33. Because appellant did not do so, we
will not disturb the magistrate judge’s ruling. See
id. at 833.
AFFIRMED.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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