In Re: Anthony Kenney , 450 F. App'x 771 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS December 14, 2011
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
In re: ANTHONY C. KENNEY, No. 11-5095
Appellant. (D.C. No. 4:11-MC-00014-CVE-FHM)
(N.D. Oklahoma)
ORDER AND JUDGMENT*
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
After examining Appellant’s brief 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). This
case is therefore ordered submitted without oral argument.
Appellant Anthony Kenney, a repeat pro se litigant subject to a court-ordered
filing restriction, appeals from the district court’s denial of permission to file proposed
pleadings. The magistrate judge recommended that permission be denied based on
Appellant’s failure to comply with the procedures outlined in the 2010 district court order
that imposed the filing restriction. Appellant did not file any objections to this
recommendation, which was then accepted by the district court. This appeal followed.
*
This order and judgment is not binding precedent, except under the doctrines of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.
As Appellant was warned in the magistrate judge’s recommendation, this court
“ha[s] adopted ‘a firm waiver rule’” under which “‘the failure to make timely objections
to the magistrate’s findings or recommendations waives appellate review of both factual
and legal questions.’” United States v. One Parcel of Real Property, 73 F.3d 1057, 1059
(10th Cir. 1996) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).
Although we may vary from this rule “when the interests of justice so dictate,” see
Moore, 950 F.2d at 659, nothing in Appellant’s brief or the record on appeal suggests a
reason for this exception to apply. See Morales-Fernandez v. INS, 418 F.3d 1116, 1119-
20 (10th Cir. 2005) (listing factors this court has considered in determining whether to
invoke the interests-of-justice exception). Appellant’s failure to object to the magistrate
judge’s recommendation is thus fatal to his case.1
The district court’s denial of permission to file the proposed pleadings is
AFFIRMED. We DENY Appellant’s motion to proceed in forma pauperis on appeal
and instruct him to immediately pay the unpaid balance of his appellate filing fee.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
1
Moreover, even if this issue had not been waived, we see no error in the
magistrate judge’s recommendation that permission to file should be denied. Appellant’s
proposed pleadings clearly did not satisfy the requirements of the 2010 filing restriction.
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