Davis v. Zavaras ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
November 28, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
GLENN DAVIS,
Plaintiff - Appellant,
No. 12-1106
v. (D.C. No. 1:09-CV-00266-REB-BNB)
(D. Colo.)
ARISTEDES ZAVARAS, Director,
CDOC; COLORADO DEPARTMENT
OF CORRECTIONS; JIM MOORE,
Offender Services; LT. PIPER, DOC
Employee, Limon, CO; MAJOR
WILLIAM BRUNELL, CDOC
Employee, Buena Vista, CO; JAMES
LANDER, CDOC Mental Health
Employee, Canon City, CO: BURL
MCCULLAR, SOTMP Program
Manager, CDOC Mental Health
Employee, Canon City, CO,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges. **
*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Glenn Davis, a state prisoner appearing pro se, appeals the district court’s
order denying his Rule 59(e) motion for reconsideration and denying relief on his
42 U.S.C. § 1983 complaint against various state employees. We have
jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.
Background
Mr. Davis was convicted of various sex offenses and is incarcerated by the
Colorado Department of Corrections. R. 582–83. On February 9, 2009, Mr.
Davis filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that
prison officials violated his constitutional rights by censoring his reading
materials, failing to protect him from an attack by another inmate, and placing
him in a correctional facility without a sex offender treatment program. R. 7–18.
Defendants filed a motion to dismiss, and the magistrate judge recommended that
the motion be granted in part. R. 117. Mr. Davis obtained two extensions of time
to file objections, but never filed any objections. R. 140. Thereafter, the district
court adopted the recommendation, leaving just two claims remaining. R. 141.
Defendants then moved for summary judgment. R. 168. On November 10, 2010,
the magistrate judge recommended that the motion be granted. R. 598. The
recommendation advised that the parties had fourteen days to serve and file
objections, and the failure to do so would waive appellate review. R. 598. The
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court granted Mr. Davis three extensions of time to file objections—the final
extension until February 21, 2011—but none were filed. R. 599–600. On
February 23, 2011, the district court adopted the recommendation of the
magistrate judge and granted Defendants’ motion for summary judgment. R. 601.
On March 10, 2011, Mr. Davis filed a “Motion for Reconsideration
Pursuant to Rule Fed. Civ. 59(e)” in which he explained that “unusual and
extenuating circumstances” prevented him from meeting the court’s deadline, and
requested another extension to file objections. R. 609–11. The district court
denied the motion. Davis v. Zavaras, 09-cv-00266-REB-BNB, 2012 WL 638783,
at *1 (D. Colo. Feb. 28, 2012). Our review is for an abuse of discretion. Barber
ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009).
Discussion
As the district court noted, “a motion for reconsideration is appropriate
where the court has misapprehended the facts, a party’s position, or the
controlling law.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th
Cir. 2000). The district court did not abuse its discretion in denying the motion
as Mr. Davis did not demonstrate any of these grounds for reconsideration. See
Davis, 2012 WL 638783, at *1–2. Rather, Mr. Davis sought another extension of
time. However, the time to file objections is not infinite. The magistrate judge
issued his recommendation on November 10, 2010. The court granted extensions
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until February 21, 2011. As a result, Mr. Davis had 103 days to file his
objections. Mr. Davis had far greater time than customary to file his objections,
notwithstanding the circumstances he identified.
Finally, to the extent that Mr. Davis challenges the merits of the district
court’s order granting summary judgment, he has waived this argument under our
firm waiver rule. See Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008)
(“The failure to timely object to a magistrate’s recommendations ‘waives
appellate review of both factual and legal questions.’” (quoting Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991))). “There are two exceptions when the
firm waiver rule does not apply: ‘when (1) a pro se litigant has not been informed
of the time period for objecting and the consequences of failing to object, or when
(2) the ‘interests of justice’ require review.’” Id. (citation omitted). Neither
exception applies here.
First, the magistrate judge informed Mr. Davis that he had fourteen days to
file an objection before waiving appellate review. The recommendation clearly
advises that “the parties have [fourteen] days after service of this recommendation
to serve and file specific, written objections [and] failure [to do so] . . . waives
appellate review of both factual and legal questions.” R. 598. Mr. Davis was
aware of this pending deadline because he requested several extensions to prolong
this period.
Second, the “interests of justice” do not favor review. Under this
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exception, we consider “a pro se litigant’s effort to comply, the force and
plausibility of the explanation for his failure to comply, and the importance of the
issues raised.” Duffield, 545 F.3d at 1238 (citation omitted). The first two
considerations weigh against Mr. Davis because of his repeated requests for
extensions and failure to file objections. Nor are we persuaded that the third
consideration, which we review under a plain error analysis, is relevant because
Mr. Davis has not demonstrated plain error vis-a-vis the district court’s resolution
of his claims.
AFFIRMED. We GRANT the motion for leave to proceed on appeal
without prepayment of costs or fees and remind Mr. Davis that he is obligated to
continue making partial payments until the entire fee has been paid.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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