Mackey v. City of Colorado Springs ( 2022 )

Appellate Case: 22-1087 Document: 010110728350 Date Filed: 08/23/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 23, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
SHAQUILLE TRAMAINE MACKEY,
Plaintiff - Appellant,
v. No. 22-1087
(D.C. No. 1:22-CV-00311-LTB-GPG)
THE CITY OF COLORADO SPRINGS; (D. Colo.)
THE COUNTY OF EL PASO COUNTY
COLORADO,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, MURPHY, and EID, Circuit Judges.**
_________________________________
Shaquille Mackey filed a pro se civil complaint against various government
entities. Based on several deficiencies in his complaint, including the cursory and
unclear nature of his allegations, the magistrate judge ordered him to file an amended
complaint and provided specific directions on how to cure the deficiencies. In
response, Mackey filed an amended complaint that was substantially the same as his
*
This order and judgment is not binding precedent, except under the doctrines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 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.
Appellate Case: 22-1087 Document: 010110728350 Date Filed: 08/23/2022 Page: 2
original complaint. The magistrate judge subsequently recommended that the
amended complaint be dismissed without prejudice for failure to comply with Rule 8
of the Federal Rules of Civil Procedure. The magistrate judge’s report and
recommendation specifically stated that any written objections must be filed within
fourteen days and that the failure to file a timely objection might bar a party from
receiving de novo consideration by the district court as well as appellate review.
Mackey did not file an objection to the magistrate judge’s report and
recommendation. After the time limit for objections had expired, the district court
accepted and adopted the report and recommendation and dismissed the action
without prejudice.
“This court has adopted a firm waiver rule under which a party who fails to
make a timely objection to the magistrate judge’s findings and recommendations
waives appellate review of both factual and legal questions.” Morales-Fernandez v.
I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005). “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.” Duffield v. Jackson, 545 F.3d 1234, 1237
(10th Cir. 2008) (quotations omitted).
Neither of these exceptions applies here. The magistrate judge’s report and
recommendation informed Mackey of the time period for objecting and the
consequences of failing to object, and thus Mackey “cannot avail himself of the first
exception to the waiver rule.” Id. As for the interests-of-justice exception, our
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Appellate Case: 22-1087 Document: 010110728350 Date Filed: 08/23/2022 Page: 3
analysis of this exception has “considered factors such as 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.” Id. (quotations omitted). Here, there is no
indication that Mackey attempted to object to the magistrate judge’s report and
recommendation, and his only explanation for his failure to object is that he “wasn’t
mindful it was a time limit” and “took an emergency trip,” about which he provides
no further details from which we could judge the force and plausibility of this
explanation. Moreover, in considering “the importance of the issues raised,” we
conduct an analysis akin to plain-error review, id., and nothing in the appellate record
or in Mackey’s appellate filings persuades us that the district court plainly erred by
dismissing the action without prejudice under Rule 8. Accordingly, we are not
persuaded that the interests of justice warrant an exception to the firm-waiver rule in
this case. See id.We hold that Mackey’s appellate arguments are barred by the firm-waiver rule,
and we accordingly affirm the district court’s dismissal of the action. Mackey’s
motion to proceed in forma pauperis is granted.
Entered for the Court
Michael R. Murphy
Circuit Judge
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