UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ DEREK W. COLE, Plaintiff - Appellant,

v. CITY OF AURORA , COLORADO, a Colorado municipal corporation; STEVE HOGAN, Mayor, City of Aurora, Colorado; AURORA CITY COUNCIL, City of Aurora, Colorado; GEORGE “SKIP” NOE, City Manager, City of Aurora, Colorado; NICHOLAS “NICK” METZ, Chief of Police, City of Aurora, Colorado; AURORA POLICE DEPARTMENT, City of Aurora, Colorado; SGT. TIM E. GENARO, Aurora Police Department, City of Aurora, Colorado, in his official capacity; UNKNOWN CITY OF AURORA POLICE OFFICERS, DETECTIVES, SERGEANTS, AND EMPLOYEES; JOHN (AND JANE) DOES 1-50, in their official and individual capacities, Defendants - Appellees, No. 17-1340 (D.C. No. 1:16-CV -00588-PAB-MJW) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially 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. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 19, 2018 Elisabeth A. Shumaker Clerk of Court2 Before BRISCOE , MATHESON , and EID , Circuit Judges.

________________ _________________ Derek W. Cole, a Colorado-licensed atto rney appearing pro se, appeals the district court’s dismis sal of his claims against the C ity of Aurora, the Aurora City Council, the Aurora Police Department, Sergeant Tim E. Genaro, several other named individuals, and multiple Doe defenda nts. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm. I. BACKGROUND Mr. Cole leased space for his law office in a bu ilding that went into receivership. By January 2014, he had not paid rent since the previous April, nor had he responded to multiple demands for paymen t of rent. The court-appointed receiver posted on the premises a “Thr ee Day Demand to Vacate Premis es,” warning that after three days, “any remaining items left on the premises [would] be discarded.” R., Vol. 2 at 27. Mr. Cole did not respond. Five days later, the receiver filed a complaint for unlawful detainer , mailed a copy to Mr. Cole at his only known address at the premises, and posted on the premis es a “Summons in Forcible Entry and Unlawful Detainer.” Id. at 29. Mr. Cole did not re spond to the summons, and his property was removed in February 2014. Mr. Cole alleges that he learned about the removal of his property in March 2014 and then went to the police departme nt to report a crime. There, Sergeant Genaro indicated that the po lice were aware of the circum stances, referred Mr. Cole to an agent at a liquidating company, and told him that the company had inventoried3 his property. Sergeant Genaro also inform ed Mr. Cole that he could not file a criminal report because th is was a civil matter. Mr. Cole then filed this lawsuit, al leging violations of the Fourteenth Amendment and 42 U.S.C. §§ 19 83, 1985, 1986, and 1988. Th e gist of his claims is that he could not recover his property becaus e he was not allowed to file a criminal report and because the police refused to conduc t an investigation. The district court dismissed Mr. Cole’s claims in four separate orders. First, on November 22, 2016, the court adopted a magistrate judge’s report and recommendation to dismiss th e claims against the Doe de fendants, whom Mr. Cole had not served. Although Mr. Cole had been advised that he had the right to object to the recommendation and that failure to object would waive his right to appellate review, he did not do so. Second, on December 5, 2016, the cour t overruled Mr. Cole’s objections and adopted the magistrate judge ’s report and recommendation that all the claims except those against Sergeant Genaro should be dismissed. The magistrate judge found that Mr. Cole had not alleged any facts agains t any other named defe ndant. Mr. Cole’s objections did not specify a ny actions by the other named defendants that supported his claims or otherwise address the grounds supporting the recommendation. Third, on January 11, 2017, the court granted Mr. Cole’s motion under Federal Rule of Civil Procedure 41(a)(2) to volunt arily dismiss the clai ms against Sergeant Genaro in his individual capacity.4 Fourth, on June 28, 2017, the court a dopted the magistrate judge’s report and recommendation to dismiss th e claims against Sergeant Genaro in his official capacity because Mr. Co le failed to allege any policy or custom of the municipality that caused him harm. Again, Mr. Cole ha d been informed of the consequences of failing to object to the recomme ndation, and he did not object. After Mr. Cole filed this appeal, we i ssued an order to show cause why he had not waived his right to appellate review of the district court’ s November 22, 2016, and June 28, 2017, orders. Mr . Cole’s response was referred to this panel. Mr. Cole then filed his opening brief, arguing that the district c ourt applied the wrong standard in dismissing his claims and that the magistrate judge wa s biased against him. The opening brief lacks a clear st atement of the issues Mr. Co le wishes to appeal. We discern no basis for reversing the district court’s orders. II. ANALYSIS We review de novo the district court’s dismissal of Mr. Cole ’s claims, and we may affirm its decision on any grounds supported by the record. See Smith v. Plati , 258 F.3d 1167, 1174 ( 10th Cir. 2001). Under the firm-waiver rule, the failure to object to a magistrate judge’s findings or recommendations waives appell ate review of both factual and legal questions. Wirsching v. Colorado , 360 F.3d 1191, 1197 (10th Cir. 2004). “[A] party’s objections to the ma gistrate judge’s report and recommendation must be both timely and specific to pres erve any issue for . . . appellate review.” United States v. 2121 E. 30th St. , 73 F.3d 1057, 1060 (10th Cir. 1996) . “[O]nly an objection that is5 sufficiently specific to focus the district court’s attent ion on the factual and legal issues that are truly in dis pute will advance the policies . . . that led us to adopt a waiver rule in the first instance.” Id

. We have delineated two exceptions to the rule: (1) when a pro se litigant has not been informed about the opportunity to object and the consequences for failing to do so, and (2) when the interest s of justice require review. Duffield v. Jackson , 545 F.3d 1234, 1237 (10th Ci r. 2008). Factors releva nt to the second exception include “a pro se litigant’s effort to comply [with the objec tion requirement], the force and plausibility of the explanation fo r his failure to comply, and the importance of the issues raised.” Morales-Fernandez v. I.N.S. , 418 F.3d 1116, 1120 (10th Cir. 2005). Determining whether the exception a pplies incorporates, at a minimum, the plain error standard. Id. at 1122. A. November 22, 2016, Order In his response to this court’s show-cau se order, Mr. Cole does not address the November 22, 2016, order. In his opening brief, he argue s that the district court adopted the magistrate judge’s recommenda tion “prematurely,” without allowing him the statutorily prescribed tim e to object. Aplt. Opening Br . at 6. Mr. Cole, however, makes no specific argument about any legal or factual issues in the magistrate judge’s recommendation. Moreover, his argument about the timeliness of his objection lacks merit. Acco rding to the district court’s docket, the report and recommendation was mailed to him on Novemb er 4, 2016. Because he was served by mail, the fourteen-day d eadline to serve and file specific written objections,6 see 28 U.S.C. §636(b)(1)(C); Fed. R. Civ. P. 72(b)(2), was extended by three days,

see Fed. R. Civ. P. 6(d), resulting in a dead line of November 21. The district court’s order was issued after the a pplicable deadline. We dis cern no basis for reversal of this order. B. December 5, 2016, Order Mr. Cole did object to the magistrate judge’s recommendation to dismiss all of Mr. Cole’s claims except those against Serg eant Genaro. The district court overruled the objection, finding Mr. Cole had failed to address the basis for the recommendation, which was that Mr. Cole had not alleged a ny facts against any defendant but Sergeant Genaro. Based on our review of the objection, we agree. “[A] party’s objections to the magistrate judge’s report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” 2121 E. 30th St. , 73 F.3d at 1060 (emphasis added); see also Moore v. Astrue , 491 F. App’x 921, 923 (10th Cir. 2012) (unpublished) (cited for persuasive value under 10th Cir. R. 32.1). Because Mr. Cole’s objection was not sufficiently specific, he has waived his right to appe llate review of this order. C. January 11, 2017, Order The district court granted Mr. Cole’s motion to dismiss his claims against Sergeant Genaro in his individual capacity. See Fed. R. Civ. P. 41(a)(2). To the extent Mr. Cole seeks to app eal that order, “[w]e generally lack appellate jurisdiction to review voluntary dism issals of claims,” Ali v. Fed. Ins. Co. , 719 F.3d 83, 88 (2d Cir. 2013); see also Anchor Pointe Boat-A -Minium Ass’n, Inc. v. Meinke ,7 860 F.2d 215, 218 (6th Cir. 198 8) (“The general rule is . . . that a plaintiff who has requested and been granted or agreed to a voluntary dismissal of his action without prejudice cannot maintain or prosecute an appeal from the order of dismissal.” (internal quotation marks omitted)). D. June 28, 2017, Order Mr. Cole argues that he did not wa ive his appellate rights regarding the June 28, 2017, order, because (1) he does not recall whether th e magistrate judge’s recommendation was properly served on him, (2) he is a permanently disabled, African-American veteran of the United St ates Navy who has su ffered from a number of medical problems, includi ng thyroid cancer, a stroke, a nd blood clots in his lungs, (3) all of the property that was in his o ffice was removed in February 2014, and (4) his father died in Apr il 2016, which engendered a stre ssful family dispute about the estate. The first exception to the firm-wai ver rule does not apply because the magistrate judge’s recommenda tion clearly informed Mr. Cole about his opportunity to object, see 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2), and the consequences for failing to do so. As noted in the di strict court’s order, the recommendation was served on the parties on May 30, 2017. Mr. Cole’s assertion that he does not recall receiving it does not warrant application of this exception. Nor do the allegations in Mr. Cole’s response provide ade quate grounds for excusing his failure to object to the recomme ndation in the interest s of justice. For example, the magistrate judge’s recommenda tion was issued more than a year after8 Mr. Cole’s father died and more than three years after property was removed from Mr. Cole’s office. Moreover, the record shows that in October 2016, Mr. Cole availed himself of the opportunity to file an objection to a previous recommendation by the magistrate judge (underlying the district court’s December 5, 2016, order). In light of his ability to object to an earlier recommendation, Mr. Cole has not provided a plausible explanation to excuse his failure to object to this one. E. Request for Attorney Fees and Costs In their answer brief, appellees request an award of attorney fees and costs for responding to this appeal. We decline to grant their reque st because they have not filed a separate motion. See Fed. R. App. P. 38. F. Mr. Cole’s Reply Brief In his reply, Mr. Cole raises a new ar gument that the court- appointed receiver violated state law. We do not ordinarily review issues ra ised for the fi rst time in a reply brief. Stump v. Gates , 211 F.3d 527, 53 3 (10th Cir. 2000). To the extent Mr. Cole attempts to suppor t this new argument with nine ty-one pages of documents submitted as exhibits to his reply br ief, we decline to consider them. See United States v. Erickson , 561 F.3d 1150, 1165 n.2 (10th Cir. 2009) (declining to consider affidavits referred to only in the reply brief).9 III. CONCLUSION We affirm the district court’s judgmen t dismissing all of Mr. Cole’s claims.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge