Johnson v. Reyna ( 2023 )

Appellate Case: 21-1371 Document: 010110795849 Date Filed: 01/11/2023 Page: 1
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS January 11, 2023
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
JABARI J. JOHNSON,
Plaintiff - Appellant,
v. No. 21-1371
REYNA; WARGO; KORIN,
Defendants - Appellees.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:20-CV-00459-PAB-MEH)
_________________________________
Kathrina Szymborski (Easha Anand, Roderick & Solange MacArthur Justice
Center, San Francisco, California, David F. Oyer & Elizabeth A. Bixby on the
briefs), of Roderick & Solange MacArthur Justice Center, Washington, D.C.,
for Plaintiff-Appellant.
Cole J. Woodward, Assistant Attorney General (Philip J. Weiser, Colorado
Attorney General and Joshua G. Urqhuart, Assistant Attorney General,
Colorado Department of Law, on the briefs), Denver, Colorado, for Defendant-
Appellee.
_________________________________
Before TYMKOVICH, SEYMOUR, and PHILLIPS, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
The Prison Litigation Reform Act (PLRA) requires a prisoner to show a
physical injury to bring a civil action for mental or emotional injury suffered in
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custody. 42 U.S.C. § 1997e(e). Appellant Jabari Johnson, who proceeded pro se
in the district court but has counsel on appeal, alleged in a 42 U.S.C. § 1983complaint against three prison officers that the officers slammed him on his
untreated fractured jaw, stepped on his untreated injured foot, caused him
excruciating pain, and inflicted further injury on his jaw and foot to the point
that he needed physical therapy and surgery. He also alleged that the incident
caused him depression and anxiety. The district court ruled that Johnson failed
to allege a sufficient physical injury under § 1997e(e) to claim mental or
emotional damages and dismissed his individual-capacity claims against the
officers with prejudice.
But Johnson’s allegations satisfy § 1997e(e)’s physical-injury
requirement. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse in
part, affirm in part, and remand.
BACKGROUND
I. Factual Background
Johnson, a state prisoner in Colorado, is a prolific pro se litigant. By his
own count, he has brought over sixty civil suits against prison officials under
the Eighth and Fourteenth Amendments. Except for those complaints that are
still pending, all of Johnson’s complaints have been dismissed on grounds that
he failed to prosecute or failed to comply with court orders or procedural rules.
On May 3, 2018, prison staff escorted Johnson to the office of the prison
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case manager, Humphreys, to retrieve copies of Johnson’s prior grievances. 1
Humphreys questioned Johnson about his upcoming lawsuits. Johnson declined
to speak about the lawsuits but instead asked for his earlier grievances so he
could continue the grievance process. Humphreys became irate and ordered
Johnson to leave if he wouldn’t answer his questions. Johnson agreed to leave,
and Humphreys ordered that Johnson “cuff up.” App. at 13. During this
encounter, Johnson insisted he had done nothing wrong and posed no threat.
Moments later, three prison officers arrived to escort Johnson back to his
cell: Sergeant Joaquin Reyna, Lieutenant Brett Corbin, 2 and Wargo. 3 Though
Johnson was already handcuffed, the officers also shackled his legs. In the
hallway, Johnson complained that the restraints were excessive and violated his
constitutional rights. In response, Reyna “placed his foot on [Johnson’s]
untreated right foot.” Id. at 14. Johnson had suffered an earlier injury to his
right foot, so Johnson pleaded with Reyna to remove his foot and claimed that
1
To describe the May 2018 incident and its consequences, we rely on the
facts Johnson alleged in his § 1983 complaint.
2
Johnson misspelled Corbin’s name in the complaint as “Korin.” We use
the spelling provided by Corbin’s counsel.
3
As the district court noted, Wargo’s full name and identity are
uncertain. Wargo’s motion to dismiss refers to “Officer Jessica Wargo” and
uses “she” and “her” as pronouns. App. at 69–70. But Reyna and Corbin’s
motion to dismiss (authored by the same counsel) and the officers’ collective
appellate brief refer to “Sergeant Matthew Wargo” and use “he” and “him” as
pronouns. Id. at 36; Resp. Br. 1. Given this confusion, we refer to this
defendant only as “Wargo.”
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Reyna was “knowingly inflicting pain.” Id. According to Johnson, Reyna
refused to remove his foot and smiled “sadistic[ally]” at him. Id.
Once Johnson was both handcuffed and shackled, Reyna, Wargo, and
Corbin escorted him back to his cell, pushing him to walk faster despite the
shackles around his ankles. Johnson gingerly placed one foot on the stairs at a
time to avoid any further pain. Suddenly, the officers slammed Johnson “on his
untreated fractured jaw.” Id. Johnson told the officers he was in “excruciating
pain” and needed immediate medical treatment. Id.
Rather than listening to Johnson’s pleas, the three officers dragged
Johnson fifteen to twenty feet down the hallway. Wargo applied excessive
pressure to Johnson’s feet through the ankle shackles, and Johnson again stated
that he was in pain, “requesting Wargo [to] refrain from applying any further
pressure.” Id. Wargo responded by telling Johnson to “shut the [expletive] up”
and stop “running his mouth.” Id. The officers then placed Johnson in a
restraint chair.
Johnson claims that Wargo and the other officers slammed him to
retaliate against him for filing grievances. One of Johnson’s fellow inmates,
Darian Weaver, witnessed the officers’ rough handling of Johnson. Weaver
corroborated Johnson’s story to prison officials, confirming that Johnson hadn’t
resisted the officers’ escort or initiated the violent incident.
The incident exacerbated Johnson’s preexisting injuries and caused him
to need medical treatment. In February 2019, a prison doctor scheduled
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physical therapy for Johnson, presumably to heal his injured foot. And in June
2019, the chief prison dentist told Johnson he “need[ed] to visit a facial and
oral surgeon regarding [his] misaligned[,] concaved jaw.” Id. at 16. Johnson
also suffered major depression and anxiety because of the May 2018 incident.
II. Procedural Background
Johnson sued Reyna, Wargo, and Corbin under § 1983 for Eighth and
Fourteenth Amendment violations, seeking hundreds of thousands of dollars in
punitive and compensatory damages from each defendant. Reyna and Corbin
moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6),
arguing that Johnson had alleged only de minimis physical injuries, so the
PLRA’s physical-injury requirement in 42 U.S.C. § 1997e(e) barred his claims
for mental or emotional injuries. Reyna and Corbin claimed that Johnson had
failed to allege an additional physical injury from their actions, so he failed to
state a claim. Though they acknowledged that Johnson had complained of
physical pain during the incident, they argued that physical pain alone is a “de
minimis injury that may be characterized as a mental or emotional injury.” Id.
at 41.
Reyna and Corbin also argued that the Eleventh Amendment barred the
court from exercising jurisdiction over Johnson’s claims for money damages to
the extent he sought “monetary damages from the State or its employees acting
in their official capacities.” Id. at 42–44.
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Johnson responded, insisting that he “did suffer further injury to [his]
right foot and jaw.” Id. at 53. He claimed that a prison doctor had later ordered
surgery for his jaw and foot and additional physical therapy to help him walk
correctly.
A magistrate judge recommended granting Reyna and Corbin’s motion to
dismiss under both Rules 12(b)(1) and 12(b)(6). Johnson v. Reyna (Johnson I),
No. 20-cv-00459-PAB-MEH, 2020 WL 11578162, at *5 (D. Colo. Nov. 23,
2020). The magistrate judge agreed with the officers that the Eleventh
Amendment barred Johnson’s suit for money damages against them in their
official capacities, so the court lacked subject-matter jurisdiction over the
official-capacity claims. Id. at *3. The magistrate judge also agreed with the
officers that the PLRA’s physical-injury requirement barred Johnson’s
individual-capacity claims because he had alleged only physical pain without
additional injury, so he failed to state a claim for relief. Id. at *4. And the
magistrate judge recommended denying Johnson leave to amend his individual-
capacity claims because he was an experienced pro se litigant. Id. at *4–5.
Johnson timely objected to the magistrate judge’s report and
recommendation on Reyna and Corbin’s motion to dismiss. Johnson objected
that the magistrate judge was “wrong” in applying the PLRA’s physical-injury
requirement to bar his claim because his complaint “indicated . . . that the
defendants assaulted [him] causing further injury and pain to [his] jaw and
foot.” App. at 66 (emphasis added). Johnson also stated that he “ha[d] no need
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to amend, yet [he] did file a supplemental complaint adding all the incidents
that have occur[r]ed after this suit was filed.” Id. at 67. Johnson argued that his
complaint wasn’t defective.
Two months after Reyna and Corbin’s motion to dismiss, Wargo also
moved to dismiss under Rules 12(b)(1) and 12(b)(6). Wargo’s motion to
dismiss echoed Reyna and Corbin’s motion nearly verbatim. Johnson responded
by reiterating his earlier contentions to Reyna and Corbin’s motion to dismiss.
Using nearly identical language to the first report and recommendation,
the magistrate judge recommended granting Wargo’s motion to dismiss under
Rules 12(b)(1) and 12(b)(6), relying on the same reasoning that the Eleventh
Amendment barred Johnson’s official-capacity suit and that the PLRA barred
Johnson’s individual-capacity claims. Johnson v. Reyna (Johnson II), No. 20-
cv-00459-PAB-MEH, 2021 WL 852287, at *3–5 (D. Colo. Jan. 25, 2021). The
magistrate judge also recommended denying Johnson leave to amend his
complaint against Wargo. Id. at *4–5.
Johnson didn’t object to the magistrate judge’s recommendation to
dismiss his claims against Wargo. Johnson v. Reyna (Johnson III), No. 20-cv-
00459, 2021 WL 848755, at *1 (D. Colo. Mar. 4, 2021). So the district court
accepted the magistrate judge’s recommendations in full and dismissed
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Johnson’s individual-capacity claim against Wargo with prejudice and his
official-capacity claim against Wargo without prejudice. Id.The district court also accepted the magistrate judge’s recommendation to
dismiss Johnson’s official-capacity claims against Reyna and Corbin without
prejudice because the Eleventh Amendment barred the court from exercising
subject-matter jurisdiction. Johnson v. Reyna (Johnson IV), No. 20-cv-00459-
PAB-MEH, 2021 WL 4305009, at *3–4 (D. Colo. Sept. 22, 2021). The court
overruled Johnson’s objections to the magistrate judge’s report and
recommendation on his individual-capacity claims against Reyna and Corbin,
reasoning that Johnson had failed to allege a sufficient physical injury to
satisfy the PLRA’s physical-injury requirement. Id. at *4–5. The court also
refused to grant Johnson leave to amend and dismissed his individual-capacity
claims against Reyna and Corbin with prejudice. Id. at *5–6.
Johnson timely filed his appeal under the prisoner-mailbox rule. See Fed.
R. App. P. 4(c)(1)(A). On appeal, Johnson challenges only the district court’s
dismissal with prejudice of his individual-capacity suits.
STANDARD OF REVIEW
We review de novo a district court’s grant of a 12(b)(6) motion to
dismiss. Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d
802, 811 (10th Cir. 2021) (citing Albers v. Bd. of Cnty. Comm’rs, 771 F.3d 697,
700 (10th Cir. 2014)). We accept as true all well-pleaded factual allegations in
the complaint and view them in the light most favorable to Johnson, the
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non-moving party. Id. (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.
2006)). To survive a motion to dismiss, a complaint must include “enough facts
to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face “when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
DISCUSSION
Much of this appeal depends on the proper construction of Johnson’s
complaint. Johnson raises substantive arguments about the scope of the PLRA’s
physical-injury requirement (that both a de minimis injury and pain alone will
satisfy § 1997e(e)), and the officers counter that Johnson has waived these
arguments. But the facts of Johnson’s case don’t require us to reach these
arguments.
We conclude that Johnson has adequately pleaded a serious physical
injury in his complaint that satisfies § 1997e(e)’s physical-injury requirement,
so we need not address whether a de minimis injury or physical pain alone
would satisfy § 1997e(e) or whether Johnson properly preserved these
arguments.
But we still must address whether, on remand, Johnson can pursue his
claims against all three officers. Because Johnson failed to timely object to the
magistrate judge’s report and recommendation on Wargo’s motion to dismiss,
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and no exception to the firm-waiver rule applies, Johnson has waived his claim
against Wargo. On remand, Johnson can pursue his claims only against Reyna
and Corbin.
I. Construing Johnson’s Complaint
A. Our Rule of Liberal Construction
We construe pro se plaintiffs’ pleadings liberally; this is a “well-settled
principle” in our circuit. Reynoldson v. Shillinger, 907 F.2d 124, 125 (10th Cir.
1990) (citing Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir. 1988)). If we
“can reasonably read the pleadings to state a valid claim on which the plaintiff
could prevail,” we should do so. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991). In practicing leniency, we will often excuse pro se plaintiffs’
“failure to cite proper legal authority,” “confusion of various legal
theories,” “poor syntax and sentence construction,” and “unfamiliarity with
pleading requirements.” Id. We consistently construe pro se prisoners’
pleadings liberally even if they frequently file lawsuits in the federal courts.
E.g., Smith v. Veterans Admin., 636 F.3d 1306, 1308, 1310 (10th Cir. 2011);
Childs v. Miller, 713 F.3d 1262, 1264–65 (10th Cir. 2013); Kinnell v. Graves,
265 F.3d 1125, 1127 & n.1 (10th Cir. 2001).
The officers argue that because Johnson is a “seasoned and prolific
litigant,” we should deny him the leeway that we would generally afford to pro
se plaintiffs. Resp. Br. 14. But we decline to apply a more stringent standard to
Johnson simply because he has filed dozens of lawsuits. We agree with
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Johnson’s appellate counsel that “filing many lawsuits as an incarcerated pro se
litigant is no substitute for years of law school, access to legal research
databases, and the like.” Reply Br. 28. Nearly all of Johnson’s previous
complaints were later dismissed for failure to prosecute or procedural missteps.
That Johnson knows how to file complaints doesn’t mean that he knows how to
litigate them like a licensed attorney. We will continue to construe all pro se
plaintiffs’ pleadings liberally, even if they come from frequent filers like
Johnson.
B. Our Liberal Construction of Johnson’s Complaint
The district court construed Johnson’s complaint as alleging only pain,
without an additional or exacerbated physical injury. Johnson I, 2020 WL
11578162, at *4; Johnson II, 2021 WL 852287, at *4; Johnson IV, 2021 WL
4305009, at *4–5. But when we liberally construe Johnson’s complaint, we find
that he alleged that the officers caused him intense physical pain and
exacerbated his preexisting injuries, to the point he needed medical treatment.
During the assault, Johnson told the officers they were causing him
“excruciating pain.” App. at 14. And he immediately requested medical
treatment as soon as they slammed him on his fractured jaw. He also alleged
that he needed physical therapy and oral surgery a year after the May 2018
incident. And he described that the officers inflicted “pain and injury to [his]
jaw and foot,” which “require[d] further treatment that [he] [had] not received
from [May 3, 2018] to [the] current date.” Id. at 17 (emphases added). We read
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Johnson’s complaint’s allegations as stating that the officers’ conduct not only
caused him excruciating pain but also exacerbated the injuries on his jaw and
foot that required surgery and physical therapy. We also read Johnson’s
complaint as seeking damages for both physical injuries (i.e., his exacerbated
jaw and foot injuries) and mental or emotional injuries (i.e., his anxiety and
depression that resulted from the incident). The district court improperly
construed Johnson’s complaint by overlooking his plain-language allegations of
pain and injury that required medical treatment.
The district court also suggested that Johnson didn’t properly preserve a
specific objection to the magistrate judge’s report and recommendation to
dismiss his claims against Reyna and Corbin. See Johnson IV, 2021 WL
4305009, at *5. We disagree. Johnson objected to the magistrate judge’s
finding that he didn’t allege a sufficient physical injury by explaining that the
defendants caused him “further injury and pain to [his] jaw and foot.” App. at
66 (emphasis added). Again, the district court failed to liberally construe
Johnson’s pleadings. A plain reading of his objections to Reyna and Corbin’s
motion to dismiss reveals that he properly preserved his argument that they
inflicted additional injury.
II. The PLRA’s Physical-Injury Requirement
Next, we turn to whether Johnson’s allegations, when properly construed,
satisfy § 1997e(e)’s physical-injury requirement so that he can recover for
mental or emotional injuries. Section 1997e(e) of the PLRA provides that “[n]o
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federal civil action may be brought by a prisoner confined in a jail, prison, or
other correctional facility, for mental or emotional injury suffered while in
custody without a prior showing of physical injury or the commission of a
sexual act.” 42 U.S.C. § 1997e(e). The district court ruled that any physical
injuries Johnson suffered were de minimis and that § 1997e(e) requires more
than a de minimis physical injury for a plaintiff to recover for mental or
emotional injuries. Johnson I, 2020 WL 11578162, at *4; Johnson II, 2021 WL
852287, at *4; Johnson III, 2021 WL 848755, at *1; Johnson IV, 2021 WL
4305009, at *4–5. We disagree with the district court’s rulings that Johnson’s
injuries were de minimis.
On its face, § 1997e(e) requires only a “physical injury” without a set
threshold of degree or severity. But so far, all seven circuits to address the
issue have required plaintiffs to show more than a de minimis physical injury to
recover for a mental or emotional injury. Siglar v. Hightower, 112 F.3d 191,
193–94 (5th Cir. 1997); Liner v. Goord, 196 F.3d 132, 135 (2d Cir. 1999);
Oliver v. Keller, 289 F.3d 623, 627 (9th Cir. 2002); Mitchell v. Horn, 318 F.3d
523, 535–36 (3d Cir. 2003); Flanory v. Bonn, 604 F.3d 249, 254 (6th Cir. 2010)
(collecting cases); Brooks v. Warden, 800 F.3d 1295, 1307 (11th Cir. 2015)
(citations omitted); McAdoo v. Martin, 899 F.3d 521, 525 (8th Cir. 2018)
(citation omitted).
Courts that require more than a de minimis injury to satisfy § 1997e(e)’s
physical-injury requirement look to the duration and intensity of the injury and
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whether the plaintiff required medical treatment to decide whether the injury is
more than de minimis. See, e.g., Gomez v. Chandler, 163 F.3d 921, 924 (5th
Cir. 1999). These courts consider some injuries de minimis, such as “a sore,
bruised ear lasting for three days,” Siglar, 112 F.3d at 193, or a few days of an
upset stomach, minor cuts, and itchiness, Wallace v. Coffee County, 852 F.
App’x 871, 878 (6th Cir. 2021) (collecting cases). And they consider as de
minimis injuries some ailments like headaches, cramps, nosebleeds, dizziness,
and weight loss. McAdoo, 899 F.3d at 525–26 (citations omitted). But when an
injury lasts longer, causes more pain, and requires medical treatment, courts are
more likely to find that the physical injury supports a claim for mental or
emotional injuries under § 1997e(e). See Gomez, 163 F.3d at 924. For example,
in Gomez, the Fifth Circuit held that the plaintiff suffered more than a de
minimis injury when he endured “cuts, scrapes, [and] contusions to the face,
head, and body” that required medical treatment after prison officers kicked
and punched him for about five minutes. Id. at 924–25.
When we properly construe Johnson’s complaint as alleging both intense
physical pain and exacerbated injuries that required medical treatment, we
conclude that Johnson has alleged a serious injury that satisfies § 1997e(e)’s
physical-injury requirement, even under the more stringent standard recognized
in other circuits. 4 Johnson immediately requested medical treatment, his
4
At oral argument, the officers’ counsel acknowledged that Johnson
could meet § 1997e(e)’s physical-injury requirement by alleging that he needed
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exacerbated injuries persisted into the next calendar year, and he claimed that
the pain was “excruciating” and made it difficult for him to walk. App. at 14.
See Gomez, 163 F.3d at 924 (considering need for medical treatment, duration,
and intensity as part of § 1997e(e) analysis).
The parties urge us to decide whether a de minimis injury satisfies
§ 1997e(e)’s physical-injury requirement and whether pain alone is enough to
show a physical injury. But when we properly construe his complaint, we see
that Johnson has alleged a serious physical injury beyond pain alone that would
satisfy § 1997e(e) even under the more stringent standard recognized by other
courts. So we won’t decide today whether a de minimis injury or physical pain
alone can satisfy § 1997e(e).
Far from the minor ailments and transient aches that other circuits have
found de minimis, Johnson alleged an intense, prolonged, exacerbated injury
that still required medical treatment a year later. We hold that Johnson satisfied
the physical-injury requirement of § 1997e(e), so he may pursue a claim for
mental or emotional injuries in addition to his physical injuries. The district
court erred in dismissing Johnson’s individual-capacity claims against Reyna
and Corbin for failure to state a claim. 5
immediate medical treatment for his broken jaw. The officers’ counsel also
suggested that Johnson could satisfy the physical-injury requirement by
alleging that the officers’ actions exacerbated his broken jaw.
5
On appeal, Johnson argues that even if he doesn’t satisfy § 1997e(e)’s
physical-injury requirement to recover damages for his mental and emotional
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III. Johnson’s Suit Against Wargo
We also must address whether Johnson can pursue his § 1983 claims
against Wargo on remand. The officers argue that the firm-waiver rule should
bar Johnson from appealing his individual-capacity suit against Wargo because
he didn’t timely object to the magistrate judge’s report and recommendation for
Wargo’s motion to dismiss. Johnson argues that we should apply the interests-
of-justice exception to the firm-waiver rule.
The magistrate judge issued nearly identical reports and
recommendations to dismiss Johnson’s suits against Reyna, Wargo, and Corbin.
Compare Johnson I, 2020 WL 11578162, with Johnson II, 2021 WL 852287.
Johnson timely objected to the magistrate judge’s first report and
recommendation for his suit against Reyna and Corbin, but he didn’t object to
the magistrate judge’s second report and recommendation for his suit against
Wargo. Johnson III, 2021 WL 848755, at *1. We recognize a firm-waiver rule:
“[T]he failure to make timely objection to the magistrate’s findings or
recommendations waives appellate review of both factual and legal questions.”
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). And we apply the
firm-waiver rule to pro se litigants, “provided they were informed of the time
injuries, he is still eligible for other damages, including punitive and nominal
damages. The officers argue that Johnson waived his nominal-damages
argument by not raising it in the district court. Because we hold that Johnson’s
allegations satisfy § 1997e(e)’s physical-injury requirement, we need not
address the nominal-damages issue.
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period for objecting and the consequences of failing to object.” 6 Wardell v.
Duncan, 470 F.3d 954, 958 (10th Cir. 2006) (citing Morales-Fernandez v. INS,
418 F.3d 1116, 1119 (10th Cir. 2005)).
But we need not apply the firm-waiver rule “when the interests of justice
so dictate.” Moore, 950 F.2d at 659 (citing Thomas v. Arn, 474 U.S. 140, 155
(1985)). To determine whether this exception applies, we consider three
factors: “[1] a pro se litigant’s effort to comply, [2] the force and plausibility
of the explanation for his failure to comply, and [3] the importance of the
issues raised.” Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010)
(alterations in original) (quoting Morales-Fernandez, 418 F.3d at 1120). Our
interests-of-justice exception “is similar to reviewing for plain error.” 7
Morales-Fernandez, 418 F.3d at 1120.
Johnson argues that he tried to comply with the timely-objection rule by
objecting to the first report and recommendation for Reyna and Corbin’s
motion to dismiss, which was nearly identical to the later report and
6
The magistrate judge warned Johnson about the time to object and the
consequences of failing to timely object. Johnson II, 2021 WL 852287, at *5
n.3.
7
Plain error is another exception to the firm-waiver rule. See Wardell,
470 F.3d at 958. But Johnson doesn’t argue that plain error applies, so we need
not consider it. Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1131 (10th Cir.
2011) (“[T]he failure to argue for plain error and its application on
appeal . . . surely marks the end of the road for an argument for reversal not
first presented to the district court.” (citing McKissick v. Yuen, 618 F.3d 1177,
1189 (10th Cir. 2010))).
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recommendation for Wargo’s motion to dismiss. And he explains his failure to
comply by stating that he didn’t know “he was required to file two identical
sets of objections.” Opening Br. 38. On the other hand, the officers urge us to
reject Johnson’s explanation and weigh the first two factors against him
because he is a frequent filer.
In at least one case, we have weighed a pro se plaintiff’s litigiousness in
his favor on the first two interests-of-justice factors: (1) the plaintiff’s effort to
comply, and (2) the plausibility of the plaintiff’s explanation for failure to
comply. See Wirsching v. Colorado, 360 F.3d 1191, 1198 (10th Cir. 2004)
(crediting a plaintiff’s explanation for his failure to comply because he was a
“fairly tenacious litigant”). So we won’t hold Johnson’s frequent-filer status
against him in evaluating the first two factors. But Johnson’s interests-of-
justice argument still fails.
In Wirsching, the plaintiff explained that he couldn’t timely object
because he never received the magistrate judge’s report and recommendation.
Id. We credited his explanation because his failure to timely object was
inconsistent with his tenacity in the lawsuit. Id. Similarly, in Casanova we
found that the first two interests-of-justice factors weighed in the plaintiff’s
favor when he didn’t receive the magistrate judge’s report, when he notified the
court about a mail-delivery delay in the prison, when he followed up with the
district-court clerk’s office about his case, and when medical procedures also
prevented him from timely objecting. 595 F.3d at 1124. Unlike the plaintiffs in
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Wirsching and Casanova, not only did Johnson receive the report and
recommendation for Wargo’s motion to dismiss, but he also requested and
received a one-month extension in which to object. Johnson III, 2021 WL
848755, at *1. Johnson’s request for an extension reflects his understanding
that he needed to object to the second report and recommendation for Wargo’s
motion to dismiss, so the first two interests-of-justice factors weigh against
him.
The third factor—the importance of the issues raised—also weighs
against Johnson. In Casanova, we found that the third factor weighed in the
plaintiff’s favor when his injuries required immediate hospitalization, and
prison officials defied his doctor’s orders. 595 F.3d at 1124. Though Johnson
alleges that Wargo caused him serious injuries that required physical therapy
and surgery almost a year later, he doesn’t allege injuries that required
immediate hospitalization. And on remand, Johnson can still pursue his Eighth
Amendment claims against Reyna and Corbin, both of whom Johnson alleges
contributed significantly to exacerbating his physical, mental, and emotional
injuries.
We hold that the firm-waiver rule bars Johnson’s appeal against Wargo,
and no exception applies.
CONCLUSION
We affirm the district court’s dismissal of Johnson’s § 1983 complaint
against Wargo. But we reverse the district court’s dismissal of Johnson’s
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Appellate Case: 21-1371 Document: 010110795849 Date Filed: 01/11/2023 Page: 20
§ 1983 complaint against Reyna and Corbin and remand for further
proceedings.
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