Cole v. City of Aurora ( 2018 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 19, 2018
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DEREK W. COLE,
Plaintiff - Appellant,
v. No. 17-1340
(D.C. No. 1:16-CV-00588-PAB-MJW)
CITY OF AURORA, COLORADO, a (D. Colo.)
Colorado municipal corporation; STEVE
HOGAN, Mayor, City of Aurora,
Colorado; AURORA CITY COUNCIL,
City of Aurora, Colorado; GEORGE
“SKIP” NOE, City Manager, City of
Aurora, Colorado; NICHOLAS “NICK”
METZ, Chief of Police, City of Aurora,
Colorado; AURORA POLICE
DEPARTMENT, City of Aurora,
Colorado; SGT. TIM E. GENARO, Aurora
Police Department, City of Aurora,
Colorado, in his official capacity;
UNKNOWN CITY OF AURORA
POLICE OFFICERS, DETECTIVES,
SERGEANTS, AND EMPLOYEES;
JOHN (AND JANE) DOES 1-50, in their
official and individual capacities,
Defendants - Appellees,
_________________________________
ORDER AND JUDGMENT*
_________________________________
*
After examining the briefs and 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Before BRISCOE, MATHESON, and EID, Circuit Judges.
_________________________________
Derek W. Cole, a Colorado-licensed attorney appearing pro se, appeals the
district court’s dismissal of his claims against the City of Aurora, the Aurora City
Council, the Aurora Police Department, Sergeant Tim E. Genaro, several other
named individuals, and multiple Doe defendants. We exercise jurisdiction under
28 U.S.C. § 1291 and affirm.
I. BACKGROUND
Mr. Cole leased space for his law office in a building that went into
receivership. By January 2014, he had not paid rent since the previous April, nor had
he responded to multiple demands for payment of rent. The court-appointed receiver
posted on the premises a “Three Day Demand to Vacate Premises,” warning that after
three days, “any remaining items left on the premises [would] be discarded.”
R., Vol. 2 at 27. Mr. Cole did not respond. Five days later, the receiver filed a
complaint for unlawful detainer, mailed a copy to Mr. Cole at his only known address
at the premises, and posted on the premises a “Summons in Forcible Entry and
Unlawful Detainer.” Id. at 29. Mr. Cole did not respond to the summons, and his
property was removed in February 2014.
Mr. Cole alleges that he learned about the removal of his property in March
2014 and then went to the police department to report a crime. There, Sergeant
Genaro indicated that the police were aware of the circumstances, referred Mr. Cole
to an agent at a liquidating company, and told him that the company had inventoried
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his property. Sergeant Genaro also informed Mr. Cole that he could not file a
criminal report because this was a civil matter.
Mr. Cole then filed this lawsuit, alleging violations of the Fourteenth
Amendment and 42 U.S.C. §§ 1983, 1985, 1986, and 1988. The gist of his claims is
that he could not recover his property because he was not allowed to file a criminal
report and because the police refused to conduct an investigation. The district court
dismissed Mr. Cole’s claims in four separate orders.
First, on November 22, 2016, the court adopted a magistrate judge’s report and
recommendation to dismiss the claims against the Doe defendants, whom Mr. Cole
had not served. Although Mr. Cole had been advised that he had the right to object
to the recommendation and that failure to object would waive his right to appellate
review, he did not do so.
Second, on December 5, 2016, the court overruled Mr. Cole’s objections and
adopted the magistrate judge’s report and recommendation that all the claims except
those against Sergeant Genaro should be dismissed. The magistrate judge found that
Mr. Cole had not alleged any facts against any other named defendant. Mr. Cole’s
objections did not specify any actions by the other named defendants that supported
his claims or otherwise address the grounds supporting the recommendation.
Third, on January 11, 2017, the court granted Mr. Cole’s motion under Federal
Rule of Civil Procedure 41(a)(2) to voluntarily dismiss the claims against Sergeant
Genaro in his individual capacity.
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Fourth, on June 28, 2017, the court adopted the magistrate judge’s report and
recommendation to dismiss the claims against Sergeant Genaro in his official
capacity because Mr. Cole failed to allege any policy or custom of the municipality
that caused him harm. Again, Mr. Cole had been informed of the consequences of
failing to object to the recommendation, and he did not object.
After Mr. Cole filed this appeal, we issued an order to show cause why he had
not waived his right to appellate review of the district court’s November 22, 2016,
and June 28, 2017, orders. Mr. Cole’s response was referred to this panel. Mr. Cole
then filed his opening brief, arguing that the district court applied the wrong standard
in dismissing his claims and that the magistrate judge was biased against him. The
opening brief lacks a clear statement of the issues Mr. Cole wishes to appeal. We
discern no basis for reversing the district court’s orders.
II. ANALYSIS
We review de novo the district court’s dismissal of Mr. Cole’s claims, and we
may affirm its decision on any grounds supported by the record. See Smith v. Plati,
258 F.3d 1167, 1174 (10th Cir. 2001).
Under the firm-waiver rule, the failure to object to a magistrate judge’s
findings or recommendations waives appellate review of both factual and legal
questions. Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir. 2004). “[A]
party’s objections to the magistrate judge’s report and recommendation must be both
timely and specific to preserve any issue for . . . appellate review.” United States v.
2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). “[O]nly an objection that is
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sufficiently specific to focus the district court’s attention on the factual and legal
issues that are truly in dispute will advance the policies . . . that led us to adopt a
waiver rule in the first instance.” Id.
We have delineated two exceptions to the rule: (1) when a pro se litigant has
not been informed about the opportunity to object and the consequences for failing to
do so, and (2) when the interests of justice require review. Duffield v. Jackson,
545 F.3d 1234, 1237 (10th Cir. 2008). Factors relevant to the second exception
include “a pro se litigant’s effort to comply [with the objection requirement], the
force and plausibility of the explanation for his failure to comply, and the importance
of the issues raised.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1120 (10th Cir.
2005). Determining whether the exception applies incorporates, at a minimum, the
plain error standard. Id. at 1122.
A. November 22, 2016, Order
In his response to this court’s show-cause order, Mr. Cole does not address the
November 22, 2016, order. In his opening brief, he argues that the district court
adopted the magistrate judge’s recommendation “prematurely,” without allowing him
the statutorily prescribed time to object. Aplt. Opening Br. at 6. Mr. Cole, however,
makes no specific argument about any legal or factual issues in the magistrate
judge’s recommendation. Moreover, his argument about the timeliness of his
objection lacks merit. According to the district court’s docket, the report and
recommendation was mailed to him on November 4, 2016. Because he was served
by mail, the fourteen-day deadline to serve and file specific written objections,
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see 28 U.S.C. §636(b)(1)(C); Fed. R. Civ. P. 72(b)(2), was extended by three days,
see Fed. R. Civ. P. 6(d), resulting in a deadline of November 21. The district court’s
order was issued after the applicable deadline. We discern no basis for reversal of
this order.
B. December 5, 2016, Order
Mr. Cole did object to the magistrate judge’s recommendation to dismiss all of
Mr. Cole’s claims except those against Sergeant Genaro. The district court overruled
the objection, finding Mr. Cole had failed to address the basis for the
recommendation, which was that Mr. Cole had not alleged any facts against any
defendant but Sergeant Genaro. Based on our review of the objection, we agree.
“[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.” 2121 E. 30th St., 73 F.3d at 1060 (emphasis added);
see also Moore v. Astrue, 491 F. App’x 921, 923 (10th Cir. 2012) (unpublished)
(cited for persuasive value under 10th Cir. R. 32.1). Because Mr. Cole’s objection
was not sufficiently specific, he has waived his right to appellate review of this order.
C. January 11, 2017, Order
The district court granted Mr. Cole’s motion to dismiss his claims against
Sergeant Genaro in his individual capacity. See Fed. R. Civ. P. 41(a)(2). To the
extent Mr. Cole seeks to appeal that order, “[w]e generally lack appellate jurisdiction
to review voluntary dismissals of claims,” Ali v. Fed. Ins. Co., 719 F.3d 83, 88
(2d Cir. 2013); see also Anchor Pointe Boat-A-Minium Ass’n, Inc. v. Meinke,
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860 F.2d 215, 218 (6th Cir. 1988) (“The general rule is . . . that a plaintiff who has
requested and been granted or agreed to a voluntary dismissal of his action without
prejudice cannot maintain or prosecute an appeal from the order of dismissal.”
(internal quotation marks omitted)).
D. June 28, 2017, Order
Mr. Cole argues that he did not waive his appellate rights regarding the
June 28, 2017, order, because (1) he does not recall whether the magistrate judge’s
recommendation was properly served on him, (2) he is a permanently disabled,
African-American veteran of the United States Navy who has suffered from a number
of medical problems, including thyroid cancer, a stroke, and blood clots in his lungs,
(3) all of the property that was in his office was removed in February 2014, and
(4) his father died in April 2016, which engendered a stressful family dispute about
the estate.
The first exception to the firm-waiver rule does not apply because the
magistrate judge’s recommendation clearly informed Mr. Cole about his opportunity
to object, see 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2), and the
consequences for failing to do so. As noted in the district court’s order, the
recommendation was served on the parties on May 30, 2017. Mr. Cole’s assertion
that he does not recall receiving it does not warrant application of this exception.
Nor do the allegations in Mr. Cole’s response provide adequate grounds for
excusing his failure to object to the recommendation in the interests of justice. For
example, the magistrate judge’s recommendation was issued more than a year after
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Mr. Cole’s father died and more than three years after property was removed from
Mr. Cole’s office. Moreover, the record shows that in October 2016, Mr. Cole
availed himself of the opportunity to file an objection to a previous recommendation
by the magistrate judge (underlying the district court’s December 5, 2016, order). In
light of his ability to object to an earlier recommendation, Mr. Cole has not provided
a plausible explanation to excuse his failure to object to this one.
E. Request for Attorney Fees and Costs
In their answer brief, appellees request an award of attorney fees and costs for
responding to this appeal. We decline to grant their request because they have not
filed a separate motion. See Fed. R. App. P. 38.
F. Mr. Cole’s Reply Brief
In his reply, Mr. Cole raises a new argument that the court-appointed receiver
violated state law. We do not ordinarily review issues raised for the first time in a
reply brief. Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). To the extent
Mr. Cole attempts to support this new argument with ninety-one pages of documents
submitted as exhibits to his reply brief, we decline to consider them. See United
States v. Erickson, 561 F.3d 1150, 1165 n.2 (10th Cir. 2009) (declining to consider
affidavits referred to only in the reply brief).
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III. CONCLUSION
We affirm the district court’s judgment dismissing all of Mr. Cole’s claims.
Entered for the Court
Scott M. Matheson, Jr.
Circuit Judge
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