ORDER AND JUDGMENT *
In federal district court, many cases are referred to magistrate judges. When a magistrate judge decides a dispositive issue, he or she typically enters a report and recommendation and the losing party can object. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2). Upon the timely filing of an objection, the district judge must use his or her independent judgment. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(3). But when losing parties fail to timely object, they typically waive appellate review. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008).
In this case, the district judge referred a motion to dismiss to the magistrate judge, who recommended dismissal of all claims. Mr. Johnson had fourteen days to object. 28 U.S.C. § 636(b). He obtained an extension of time but still failed to object to the report and recommendation. The failure to object would typically waive appellate review. Duffield, 545 F.3d at 1237.
The Court thus directed Mr. Johnson to show cause why the failure to object didnt waive appellate review. In response, Mr. Johnson defended the validity of his claims. Valid or not, however, the claims could be waived. So Mr. Johnsons arguments do not prevent waiver.
Though we cant act as Mr. Johnsons advocate, we recognize that he is pro se and have independently considered two possible exceptions to the waiver: (1) lack of notice and (2) interests of justice. Duffield, 545 F.3d at 1237. But these exceptions dont apply here.
In his report and recommendation, the magistrate judge gave notice by telling Mr. Johnson that (1) he had fourteen days from service to object and (2) the failure to timely object could waive appellate review. When Mr. Johnson requested an extension, he acknowledged receipt of the report and recommendation. So Mr. Johnson had notice and the first exception doesnt apply.
We thus consider the second exception (the interests of justice). In evaluating the interests of justice, we can consider Mr. Johnsons efforts to timely comply, his explanation for failing to comply, and the significance of the issues. Morales-Fernandez v. INS, 418 F.3d 1116, 1120 (10th Cir. 2005). Here, however, Mr. Johnson hasnt suggested any effort to comply or explained his failure to object to the report and recommendation.
We also consider the importance of the issues. This consideration resembles our inquiry for plain error. Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008). But Mr. Johnson hasnt shown an error, much less an error that was “plain.”
The district court concluded that the official-capacity claims trigger Eleventh Amendment immunity. In response, Mr. Johnson argues that the injunction claims fall outside the Eleventh Amendment. The district court rejected this argument, reasoning that Mr. Johnson had requested an injunction against the wrong parties. Even now, Mr. Johnson does not say why this reasoning is wrong.
The district court also concluded that the individual-capacity claims were time-barred. Mr. Johnson argues that the limitations period is tolled by continued unlawful conduct. The district court rejected this argument, reasoning in part that Mr. Johnson had complained of continued harm rather than continued misconduct. Again, Mr. Johnson does not say why this reasoning is wrong.
The district court also reasoned that even if the individual-capacity claims werent time-barred, Mr. Johnson had alleged only a disagreement with his treatment rather than deliberate indifference to his condition. Mr. Johnson does not address this reasoning.
Lastly, the district court concluded that the defendants enjoyed qualified immunity. Again, Mr. Johnson hasnt said why this conclusion is wrong.
In short, Mr. Johnson hasnt shown any errors rising to the level of plain error. So the importance of the issues would also tilt against the interests-of-justice exception.
Because the two exceptions dont apply, Mr. Johnson waived appellate review. We thus affirm the dismissal.
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FOOTNOTES
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. Though we affirm the dismissal, we grant leave to Mr. Johnson to proceed in forma pauperis. See 28 U.S.C. § 1915(g).
Robert E. Bacharach Circuit Judge