Henderson v. Cargill Packing Plant ( 2019 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS October 16, 2019
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
WILLIAM HENDERSON,
Plaintiff - Appellant,
v. No. 19-3120
(D.C. No. 6:18-CV-01253-JTM-GEB)
CARGILL PACKING PLANT, (D. Kan. )
Defendant - Appellee.
ORDER AND JUDGMENT *
Before CARSON, BALDOCK, and MURPHY, Circuit Judges.
After examining Appellant’s brief and appellate record, this panel has
unanimously concluded 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.
Proceeding pro se, William Henderson appeals the district court’s dismissal
of the civil action he brought against defendant Cargill Packing Plant (“Cargill”).
*
This order and judgment is not binding precedent except under the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.
In his original complaint, Henderson seemingly alleged that Cargill’s failure to
hire him violated Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act of 1967. Because the complaint contained
insufficient factual allegations to discern Henderson’s specific claims for relief,
he was ordered to file an amended complaint. See Fed. R. Civ. P. 8(a). After
Henderson filed an amended complaint, a United States magistrate judge
recommended dismissing it without prejudice because it still failed to comply
with Rule 8 of the Federal Rules of Civil Procedure. In a comprehensive Report
and Recommendation, the magistrate judge concluded the amended complaint
stated grounds for federal jurisdiction, named three defendants, and sought $2.8
million in damages, but still failed to provide Defendants with sufficient notice of
Henderson’s claims. 1 Id. at 8(a)(2) (requiring all civil complaints to contain “a
short and plain statement of the claim showing that the pleader is entitled to
relief”).
A copy of the Report and Recommendation was mailed to Henderson by
certified and regular mail. In it, Henderson was specifically advised of his right
to file written objections within fourteen days and also advised that his failure to
make such objections would waive appellate review of the factual and legal issues
1
For example, Henderson’s amended complaint alleges that defendant
Flores is an “HR person” who called him on June 20, 2017, and told him he “as
person [r]ejected deposited.”
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addressed in the Report. Nevertheless, Henderson failed to file a timely response
to the Report and Recommendation.
The district court adopted the Report and Recommendation in its entirety.
Accordingly, it dismissed Henderson’s amended complaint without prejudice for
failure to comply with Rule 8 of the Federal Rules of Civil Procedure. Judgment
was entered on May 20, 2019. Henderson filed a timely notice of appeal.
This court has “adopted a firm waiver rule when a party fails to object to
the findings and recommendations of the magistrate.” Moore v. United States,
950 F.2d 656, 659 (10th Cir. 1991). “Our waiver rule provides that the failure to
make timely objection to the magistrate’s findings or recommendations waives
appellate review of both factual and legal questions.” Id. “This rule does not
apply, however, 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.” Morales-Fernandez v. INS, 418 F.3d 1116,
1119 (10th Cir. 2005) (quotation omitted). Neither exception to the firm waiver
rule applies in this case. First, it is clear from the record that Henderson was
expressly advised of the fourteen-day time period and the consequences of his
failure to file timely objections to the magistrate judge’s Report and
Recommendation. Further, the interests of justice do not require appellate review.
See Wirsching v. Colorado, 360 F.3d 1191, 1197-98 (10th Cir. 2004) (discussing
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the interests of justice exception to the firm waiver rule). We consider several
factors in determining whether to apply the interests of justice exception,
including “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.”
Morales-Fernandez, 418 F.3d at 1120. Here, Henderson made no effort to
comply, has offered no explanation for his lack of compliance, and his appellate
brief does not raise any issues of sufficient importance to overcome the waiver.
See Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008) (“[T]he interests
of justice analysis . . . is similar to reviewing for plain error.” (quotation
omitted)).
For the foregoing reasons, the district court’s order dismissing
Henderson’s amended complaint is affirmed.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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