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, 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. 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

June 19, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

Before BRISCOE, MATHESON, and EID, Circuit Judges. 

_________________________________ 

Derek W. Cole, a Colorado-licensed attorney appearing pro se, appeals the 

district court’s dismissal of his claims against the City of Aurora, the Aurora City 

Council, the Aurora Police Department, Sergeant Tim E. Genaro, several other 

named individuals, and multiple Doe defendants. We exercise jurisdiction under 

28 U.S.C. § 1291 and affirm. 

I. BACKGROUND 

 Mr. Cole leased space for his law office in a building that went into 

receivership. By January 2014, he had not paid rent since the previous April, nor had 

he responded to multiple demands for payment of rent. The court-appointed receiver 

posted on the premises a “Three Day Demand to Vacate Premises,” 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 premises a “Summons in Forcible Entry and 

Unlawful Detainer.” Id. at 29. Mr. Cole did not respond 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 department to report a crime. There, Sergeant 

Genaro indicated that the police were aware of the circumstances, referred Mr. Cole 

to an agent at a liquidating company, and told him that the company had inventoried 
3 

his property. Sergeant Genaro also informed Mr. Cole that he could not file a 

criminal report because this was a civil matter. 

Mr. Cole then filed this lawsuit, alleging violations of the Fourteenth 

Amendment and 42 U.S.C. §§ 1983, 1985, 1986, and 1988. The gist of his claims is 

that he could not recover his property because he was not allowed to file a criminal 

report and because the police refused to conduct 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 the claims against the Doe defendants, 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 court 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 against any other named defendant. Mr. Cole’s 

objections did not specify any 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 voluntarily dismiss the claims against Sergeant 

Genaro in his individual capacity. 
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 Fourth, on June 28, 2017, the court adopted the magistrate judge’s report and 

recommendation to dismiss the claims against Sergeant Genaro in his official 

capacity because Mr. Cole failed to allege any policy or custom of the municipality 

that caused him harm. Again, Mr. Cole had been informed of the consequences of 

failing to object to the recommendation, and he did not object. 

 After Mr. Cole filed this appeal, we issued 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 court applied the wrong standard 

in dismissing his claims and that the magistrate judge was biased against him. The 

opening brief lacks a clear statement of the issues Mr. Cole 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 appellate review of both factual and legal 

questions. Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir. 2004). “[A] 

party’s objections to the magistrate judge’s report and recommendation must be both 

timely and specific to preserve 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 is 
5 

sufficiently specific to focus the district court’s attention on the factual and legal 

issues that are truly in dispute 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 interests of justice require review. Duffield v. Jackson, 

545 F.3d 1234, 1237 (10th Cir. 2008). Factors relevant to the second exception 

include “a pro se litigant’s effort to comply [with the objection requirement], the 

force and plausibility of the explanation for 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 applies incorporates, at a minimum, the 

plain error standard. Id. at 1122. 

A. November 22, 2016, Order

 In his response to this court’s show-cause order, Mr. Cole does not address the 

November 22, 2016, order. In his opening brief, he argues that the district court 

adopted the magistrate judge’s recommendation “prematurely,” without allowing him 

the statutorily prescribed time 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. According to the district court’s docket, the report and 

recommendation was mailed to him on November 4, 2016. Because he was served 

by mail, the fourteen-day deadline 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 deadline of November 21. The district court’s 

order was issued after the applicable deadline. We discern 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 Sergeant 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 any 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 appellate 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 appeal that order, “[w]e generally lack appellate jurisdiction 

to review voluntary dismissals 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, 
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860 F.2d 215, 218 (6th Cir. 1988) (“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 waive his appellate rights regarding the 

June 28, 2017, order, because (1) he does not recall whether the magistrate judge’s 

recommendation was properly served on him, (2) he is a permanently disabled, 

African-American veteran of the United States Navy who has suffered from a number 

of medical problems, including thyroid cancer, a stroke, and blood clots in his lungs, 

(3) all of the property that was in his office was removed in February 2014, and 

(4) his father died in April 2016, which engendered a stressful family dispute about 

the estate. 

 The first exception to the firm-waiver rule does not apply because the 

magistrate judge’s recommendation 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 district 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 adequate grounds for 

excusing his failure to object to the recommendation in the interests of justice. For 

example, the magistrate judge’s recommendation was issued more than a year after 
8 

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 request 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 argument that the court-appointed receiver 

violated state law. We do not ordinarily review issues raised for the first time in a 

reply brief. Stump v. Gates, 211 F.3d 527, 533 (10th Cir. 2000). To the extent 

Mr. Cole attempts to support this new argument with ninety-one pages of documents 

submitted as exhibits to his reply brief, 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). 
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III. CONCLUSION 

 We affirm the district court’s judgment dismissing all of Mr. Cole’s claims. 

Entered for the Court 

Scott M. Matheson, Jr. 

Circuit Judge