June 16, 2022 Christopher M. Wolpert Clerk of Court UNITED STATES COURT OF APPEALS… v. HELENE CHRISTNER, N/P - M.D., SCF Medical Department

FILED
United States Court of Appeals
Tenth Circuit
June 16, 2022
Christopher M. Wolpert
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
MARK WALTER PAULSEN,
Plaintiff - Appellant,
v.
HELENE CHRISTNER, N/P - M.D.,
SCF Medical Department,
Defendant - Appellee.
No. 21-1367
(D.C. No. 1:18-CV-01396-PAB-KMT)
(D. Colo.)
ORDER AND JUDGMENT*
Before PHILLIPS, MURPHY, and EID, Circuit Judges.
After examining the parties’ briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist in 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.
Mark Walter Paulsen appeals from an order of the district court (1) granting
summary judgment against him in part and (2) dismissing without prejudice as
*This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
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unexhausted in part claims he raised in a pro se 42 U.S.C. § 1983 civil rights
complaint. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the
district court’s judgment.
Paulsen filed a complaint alleging that, while he was incarcerated in the
Colorado Department of Corrections (“CDOC”), Nurse Helene Christner violated
his Eighth Amendment rights by failing to adequately care for his Hepatitis C
infection. The matter was referred to a magistrate judge for initial proceedings.
See 28 U.S.C. § 636(b)(1)(B). The magistrate judge issued a comprehensive
Report and Recommendation (“R & R”). After thoroughly cataloging the Prison
Litigation Reform Act’s exhaustion requirement and Paulsen’s history of filing
grievances, the R & R concluded that all of Paulsen’s Eighth Amendment claims
predicated upon allegations other than the denial of his chronic care status and the
failure to address his blood test results were unexhausted. Thus, the R & R
recommended that those claims be dismissed without prejudice. As to the
remaining aspects of Paulsen’s Eighth Amendment claims, the R & R
recommended that summary judgment be granted in Christner’s favor because the
undisputed record evidence demonstrated Paulsen did not suffer from a
sufficiently serious medical condition while under Christner’s care. In that
regard, the R & R noted the record demonstrated that during all relevant time
periods, Paulsen’s Hepatitis C infection was inactive, a condition which does not
necessitate treatment under CDOC clinical guidelines.
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Despite being specifically warned in the R & R that failure to file timely
and specific objections with the district court would result in waiver of appellate
review, Paulsen did not file timely objections. Although he did file untimely
objections, those objections did not specifically address any of the magistrate
judge’s conclusions. Instead, the objections merely reargued, in the most general
fashion, the merits of his claims. But see United States v. One Parcel of Real
Property, 73 F.3d 1057, 1060 (10th Cir. 1996) (“[O]nly an objection that is
sufficiently specific to focus the district court’s attention on the factual and legal
issues that are truly in dispute will advance the policies behind the Magistrate’s
Act that led us to adopt a waiver rule in the first instance. Therefore, we hold
that a party’s objections to the magistrate judge’s report and recommendation
must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.”). The district court concluded Paulsen’s
failure to file timely objections led to the waiver of his right to appellate review
of the R & R. Cf. 28 U.S.C. § 636(b)(1) (providing that a district court “shall
make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made”). The district
court further concluded that the result would remain the same even if it
considered Paulsen’s untimely objections because those objections did not
specifically identify any legal or factual errors on the part of the magistrate judge.
See One Parcel, 73 F.3d at 1060.
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Because Paulsen failed to file timely and specific objections to the R & R,
he has waived appellate review in this court. Although we may “grant relief from
the firm waiver rule in the interests of justice,” Klein v. Harper, 777 F.3d 1144,
1147 (10th Cir. 2015), Paulsen has not argued on appeal that he is entitled to such
relief. Indeed, in response to this court’s order to show cause why his failure to
object to the R & R did not waive appellate review, Paulsen simply argued the
merits of the issues he seeks to raise on appeal. And, in any event, in response to
Paulsen’s failure to file timely and specific objections to the R & R, the district
court undertook an extended analysis, utilizing this court’s relevant precedents, of
whether the interests of justice supported de novo review of the R & R.
Ultimately, the district court concluded Paulsen offered no reason, in spite of the
magistrate judge’s specific warning, as to why he failed to file timely and specific
objections. Furthermore, an examination of the record evidence and relevant
precedents revealed no clear or obvious error in any of the recommendations set
out in the R & R. Cf. Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008)
(holding that the interests-of-justice exception to the firm waiver rule resembles
the plain-error test). The district court’s analysis is cogent and correct and we
hereby adopt it as our own.
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For those reasons set out above, the judgment of the United States District
Court for the District of Colorado is hereby AFFIRMED. All pending motions
are hereby DENIED.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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