Jabari J. Johnson v. Karina Thompson; Joana Rodriguez

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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JABARI J. JOHNSON,
Plaintiff - Appellant,
v.
KARINA THOMPSON; JOANA
RODRIGUEZ,
Defendants - Appellees.
No. 20-1408
(D.C. No. 1:20-CV-00434-PAB-MEH)
(D. Colo.)
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ORDER AND JUDGMENT*
__________________________________________
Before BACHARACH, MURPHY, and CARSON, Circuit Judges.
__________________________________________
In federal district court, many cases are referred to magistrate
judges. When a magistrate judge decides a dispositive issue, he or she
typically enters a report and recommendation and the losing party can
object. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2). Upon the timely filing
* Because oral argument would not help us decide the appeal, we have
decided the appeal based on the record and the parties’ briefs. See Fed. R.
App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G).
Our order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
FILED
United States Court of Appeals
Tenth Circuit
August 30, 2021
Christopher M. Wolpert
Clerk of Court
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of an objection, the district judge must use his or her independent
judgment. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(3). But when losing
parties fail to timely object, they typically waive appellate review. Duffield
v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008).
In this case, the district judge referred a motion to dismiss to the
magistrate judge, who recommended dismissal of all claims. Mr. Johnson
had fourteen days to object. 28 U.S.C. § 636(b). He obtained an extension
of time but still failed to object to the report and recommendation. The
failure to object would typically waive appellate review. Duffield, 1545
F.3d at 1237.
The Court thus directed Mr. Johnson to show cause why the failure to
object didn’t waive appellate review. In response, Mr. Johnson defended
the validity of his claims. Valid or not, however, the claims could be
waived. So Mr. Johnson’s arguments do not prevent waiver.
Though we can’t act as Mr. Johnson’s advocate, we recognize that he
is pro se and have independently considered two possible exceptions to the
waiver: (1) lack of notice and (2) interests of justice. Duffield, 545 F.3d at
1237. But these exceptions don’t apply here.
In his report and recommendation, the magistrate judge gave notice
by telling Mr. Johnson that (1) he had fourteen days from service to object
and (2) the failure to timely object could waive appellate review. When
Mr. Johnson requested an extension, he acknowledged receipt of the report
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and recommendation. So Mr. Johnson had notice and the first exception
doesn’t apply.
We thus consider the second exception (the interests of justice). In
evaluating the interests of justice, we can consider Mr. Johnson’s efforts to
timely comply, his explanation for failing to comply, and the significance
of the issues. Morales-Fernandez v. INS, 418 F.3d 1116, 1120 (10th Cir.
2005). Here, however, Mr. Johnson hasn’t suggested any effort to comply
or explained his failure to object to the report and recommendation.
We also consider the importance of the issues. This consideration
resembles our inquiry for plain error. Duffield v. Jackson, 545 F.3d 1234,
1238 (10th Cir. 2008). But Mr. Johnson hasn’t shown an error, much less
an error that was “plain.”
The district court concluded that the official-capacity claims trigger
Eleventh Amendment immunity. In response, Mr. Johnson argues that the
injunction claims fall outside the Eleventh Amendment. The district court
rejected this argument, reasoning that Mr. Johnson had requested an
injunction against the wrong parties. Even now, Mr. Johnson does not say
why this reasoning is wrong.
The district court also concluded that the individual-capacity claims
were time-barred. Mr. Johnson argues that the limitations period is tolled
by continued unlawful conduct. The district court rejected this argument,
reasoning in part that Mr. Johnson had complained of continued harm
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rather than continued misconduct. Again, Mr. Johnson does not say why
this reasoning is wrong.
The district court also reasoned that even if the individual-capacity
claims weren’t time-barred, Mr. Johnson had alleged only a disagreement
with his treatment rather than deliberate indifference to his condition. Mr.
Johnson does not address this reasoning.
Lastly, the district court concluded that the defendants enjoyed
qualified immunity. Again, Mr. Johnson hasn’t said why this conclusion is
wrong.
In short, Mr. Johnson hasn’t shown any errors rising to the level of
plain error. So the importance of the issues would also tilt against the
interests-of-justice exception.
Because the two exceptions don’t apply, Mr. Johnson waived
appellate review. We thus affirm the dismissal. 1
Entered for the Court
Robert E. Bacharach
Circuit Judge
1 Though we affirm the dismissal, we grant leave to Mr. Johnson to
proceed in forma pauperis. See 28 U.S.C. § 1915(g).
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