Garrett v. Oklahoma Corp. Commission , 56 F. App'x 442 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 27 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
DWAYNE M. GARRETT,
Plaintiff - Appellant,
v. No. 02-5089
D.C. No. 01-CV-668-E
OKLAHOMA CORPORATION (N.D. Oklahoma)
COMMISSION, Sued as: State of
Oklahoma, Corporation Commission;
BILL SHUFELDT,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously 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.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Dwayne Garrett, proceeding pro se, appeals from an order of the district
court dismissing his 42 U.S.C. § 1983 civil rights complaint. The district court
referred Garrett’s complaint to a magistrate judge for initial proceedings pursuant
to 28 U.S.C. § 636(b)(1). In her report and recommendation, the magistrate judge
noted that the United States District Court for the Northern District of Oklahoma
had previously imposed filing restrictions on Garrett based on his history of
frivolous and abusive pro se litigation. The magistrate judge further noted that
Garrett had not complied with the filing restrictions and recommended that his
complaint be dismissed unless he complied with the filing restrictions within ten
days of the issuance of the report and recommendation. The report and
recommendation specifically informed Garrett that the failure to file a timely and
specific objection to the report and recommendation would result in the waiver of
appellate review. See United States v. One Parcel of Real Property, 73 F.3d 1057,
1059 (10th Cir. 1996). Nevertheless, in response to the report and
recommendation, Garrett filed a pleading simply stating as follows: “Objection: If
you want to be part of this malicious prosecution—so be it.” Because Garrett had
failed to comply with the filing restrictions and had failed to file specific
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objections to the report and recommendation, the district court adopted the report
and recommendation and dismissed Garrett’s complaint. 1
On appeal, Garrett challenges the dismissal of his complaint for failure to
comply with the filing restrictions. We conclude that Garrett has waived
appellate review by failing to file specific objections to the magistrate judge’s
report and recommendation. Rule 72 of the Federal Rules of Civil Procedure
provides that when a magistrate judge issues a ruling on a dispositive pretrial
motion, a party has ten days after service to “serve and file specific, written
objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b).
This court has held that failure to file a specific objection to a magistrate judge’s
report and recommendation constitutes a waiver of appellate review. See United
States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). Objections to the
1
Three days after the district court adopted the magistrate judge’s report
and recommendation and dismissed Garrett’s complaint, Garrett filed a letter with
the court asserting that the order was “void.” The district court entered a minute
order directing the court clerk to treat Garrett’s letter as a motion for
reconsideration. Because the motion for reconsideration was filed within ten days
of the entry of judgment, the motion tolled the time period for filing a notice of
appeal until the district court resolved the motion. See Fed. R. App. P. 4(a)(4).
Garrett’s frivolous assertion in his appellate filings that this minute order
constituted an attempt by the district court to vacate its previous order adopting
the report and recommendation and dismissing the case is a gross
mischaracterization of the record. The district court eventually denied the motion
for consideration, and denied as moot numerous other motions filed by Garrett
after the district court had already dismissed the action. Garrett then filed a
timely notice of appeal.
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magistrate judge’s report must be specific enough to focus the district court’s
attention on the factual and legal issues in dispute. See id. Here, it is clear that
Garrett’s glib, one-line “objection” was clearly insufficient to focus the district
court on the issues in dispute. Although this court recognizes an interests of
justice exception to the “firm waiver rule,” see id., Garrett has not offered any
reasons why the interests of justice weigh against application of the waiver rule in
this case. Accordingly, this court concludes that Garrett has waived appellate
review and AFFIRMS the order of the district court dismissing Garrett’s
complaint.
ENTERED FOR THE COURT
PER CURIAM
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