UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ KEVIN WAYNE MCDANIELS, Plaintiff - Appellant,

v. FNU GOFF, Detective, Ogden City Police Department, individually and in his official capacity; OGDEN CITY POLICE DEPARTMENT; TIM SCOTT, Officer, Ogden City Police Department, individually and in his official capacity; MIKE CALDWELL, Mayor of Ogden , Utah, individually and in his official capacity, Defendants Cross Claimants - Appellees, and
FEDERAL BUREAU OF INVESTIGATION; WILLIAM KENDALL, U.S. Attorney, Utah, individually and in his official capacity; OGDEN COUNTY PROSECUTOR’S OFFICE, Defendants Cross Claim Defendants - Appellees. No. 15-4147 (D.C. No. 1:14-CV-00124-DN-DBP) (D. Utah)

________________ _________________ 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 (continued) FILED United States Court of Appeals Tenth Circuit 

### May 2, 2016
Elisabeth A. Shumaker Clerk of Court2 ________________ _________________ Before BRISCOE , LUCERO , and PHILLIPS , Circuit Judges.

________________ _________________ Kevin Wayne McDaniels, a federal prisoner proceed ing pro se, appeals the district court’s orde r denying his motions to compel an investigation, to enter a default against the defendants, and to am end his complaint. The district court adopted the recommendation of a magist rate judge. We have subject-matter jurisdiction over only the portion of the or der denying the motions to compel an investigation. Even so, we do not address the merits because Mr . McDaniels failed to file an objection to the magistrate judge’s report and recommendation. The remainder of the order being appealed is not a final orde r. Therefore, we lack jurisdiction to review it. Accordingly, we affirm in part and dismiss in part.
I. Background Mr. McDaniels maintains th at, while in prison, anot her prisoner told him who had committed the unsolved 2008 murder of Jeffr ey Bancroft. He as serts that he told this information to the defendants, who ar e law-enforcement personnel, believing that he would be entitled to a reduction of his se ntence. He claims that he is now in danger from other prisoners w ho know that he is an info rmant. In his amended complaint, Mr. McDaniels s ought monetary damages agai nst the defendants for their

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. 32.1.3 failure to arrange a sentence reduction in exchange for his in formation about the Bancroft murder. Mr. McDaniels filed several motions in the district court. In the order under review here, the court addresse d and denied the three motions referred to above. On appeal, however, Mr. McDaniels argues (1) th e defendants breached their promise of a sentence reduction; (2) the ma gistrate judge and the dist rict judge conspired with the defendants to obstruct justice, “def raud[] the courts and the public,” Aplt. Opening Br. at 2, fraudulently conceal Mr. McDaniels’s role in solving the Bancroft murder, and cover up their errors in inve stigating the murder; (3) he was denied meaningful access to the cour ts because he deserves a se ntence reduction for solving the murder but has not received one; and (4 ) the defendants have denied his request to serve the remainder of his sentence in a protective-custody facility. In addition, he requests an order directing the appropriate defendants to file a motion to reduce his

sentence. II. Discussion We have liberally construed Mr . McDaniels’s pro se filings. See Erickson v. Pardus , 551 U.S. 89, 94 (2007) (per curiam); Garrett v. Selby Connor Maddux &
Janer , 425 F.3d 836, 840 (10t h Cir. 2005). We do not, however, “take on the responsibility of serving as the litigant’s attorney in constructing arguments and searching the record.” Garrett , 425 F.3d at 840. Moreover, “pro se parties [must] follow the same rules of procedure that govern other litigants.” Id. (internal quotation marks omitted).4 The district court denied Mr. McDani els’s motions seeki ng to compel the defendants to investigate th e Bancroft murder. To th e extent Mr. McDaniels’s appellate briefs can be cons trued as an appeal of an order denying a request for injunctive relief, we have jurisdiction. See 28 U.S.C. § 1292(a)(1) (providing that federal courts of appeals have jurisd iction over interlocutory orders refusing injunctions); Petrella v. Brownback , 787 F.3d 1242, 1254 (10t h Cir. 2015) (“[I]t is well established that we have jurisdiction to review inte rlocutory orders expressly denying injunctive relief pursuant to 28 U. S.C. § 1292(a)(1).”). Even though we have jurisdiction, we do not address this cl aim because Mr. McDaniels did not file an objection to the magistrate judge’ s report and recommendation. Under our firm-waiver rule, Mr. Mc Daniels’s failure to object “waives appellate review of both fact ual and legal questions.” Casanova v. Ulibarri , 595 F.3d 1120, 1123 (10th Cir. 2010) (internal quotation ma rks omitted). “This rule does not apply, however, 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.” Morales-Fernandez v. INS , 418 F.3d 1116, 1119 (10th Cir. 2005) (internal quotation marks omitted). The first exception is inapplicable be cause the magistrate judge’s report and recommendation stated: Copies of the foregoing Report and Recommendation are being sent to all parties who are hereby notified of their right to object. Within fourteen (14) days of being served with a copy, an y party may serve and file written objections. Failure to object may cons titute a waiver of objections upon subsequent review.5 R. Vol. I, at 278. We also determine that the second ex ception—interests of justice—does not warrant granting Mr. McDaniels relief fro m the firm-waiver ru le. “We may grant relief from the firm waiver rule in the interests of justice, considering such factors as a pro se litigant’s effort to comply, the force and plausi bility of his explanation for not complying and the importanc e of the issues raised.” Klein v. Harper , 777 F.3d 1144, 1147 (10th Cir. 2015). Mr. McDaniels does not clai m that he attempted to file an objection to the magistrate judge’s report and recomme ndation. Instead, he relies on his objection to the district court’s order. See Aplt. Reply Br., Attach. 1. This is insufficient, so the first two f actors weigh against Mr. McDaniels. 1 “[T]he interests of justice analysis . . . is similar to reviewing for plain error.” Duffield v. Jackson , 545 F.3d 1234, 1238 (10th Cir. 2008). A plain-error showing requires “(1) error, (2) that is plain, whic h (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (internal quotation marks omitted). Mr . McDaniels has offered no argument or authority to refute the dist rict court’s determination th at “the Supreme Court has repeatedly held that ‘a priv ate citizen lacks a judicially cognizable interest in the

1 Defendants Goff, Scott, and Caldwe ll have provided a copy of a document they received purporting to be a “Notice of Objection to Report and Recommendation” submitted by Mr. McDaniels. See Aplee. Br. (Goff, Scott, Caldwell), Attach. 1. But th e district court docket sheet does not reflect that such a document was filed, the distri ct court’s order states that no objection to the report and recommendation was filed, a nd Mr. McDaniels does not clai m he filed the document. Therefore, we do not consider it.6 prosecution or nonprosecution of another.’” R. Vol. 1, at 275-76 (quoting Town of Castle Rock v. Gonzales , 545 U.S. 748, 767 n.13 (2005)). He merely states in conclusory fashion that solving the Bancro ft murder warrants review of his claims and the district court abused its discretion in holding that it is not his duty or right to solve a murder. Not only are these statements insufficient to meet the interests-ofjustice exception to the firm-waiver rule , they are insufficient even to invoke appellate review. See Kerber v. Qwest Pension Plan , 572 F.3d 1135, 1146 (10th Cir. 2009) (rejecting appellate cl aim as inadequately brie fed because the claim was addressed in only conclusory fashion) . Consequently, we do not address Mr. McDaniels’s challenge to the ruling de nying his motions seeking to compel the defendants to investigate the Bancroft murder. The remaining rulings by the district c ourt are not a final order so we lack jurisdiction to address them. See 28 U.S.C. 1291 (providing th at federal courts of appeals have jurisdiction over a ll final decisions of the distri ct courts). “As a general rule, this court has jurisdic tion over only final orders, thos e that end the litigation on the merits and leave nothing for the court to do but execute the judgment.” Oil, Chem., & Atomic Workers Int’l Un ion (AFL-CIO) v. Conoco, Inc. , 241 F.3d 1299, 1302 (10th Cir. 2001) (brackets and internal quotation marks omitted). The rulings denying Mr. McDaniels’s motio ns to enter a default agai nst the defendants and to amend his complaint did not end the litigation on the me rits. That his appellate arguments do not address these rulings is irrelevant to our determination that this court lacks jurisdiction over the nonfinal order.7 III. Pending Motions We deny Mr. McDaniels’s second moti on for appointment of counsel. We also deny his “Motion Requesting an Or der by the Court for the Defendants to Contact Plaintiff[’]s U.S. A tty Lance Crick, Greenville, S. C. to Make Sure Plaintiff Receives a Downward Departure for His A ssistance” and “Moti on to Compel the U.S. Attorney[’]s Office as a Whole to fi le a Downward Departure for Substantial Assistance in Solving the Jeff rey Bancroft Murder.” Both motions ask this court to require prosecutors to seek a sentence reduc tion for Mr. McDaniels. It is beyond our purview to order this relief. Cf. United States v. Perez , 955 F.2d 34, 36 (10th Cir. 1992) (“The government is in the best position to determine whether a defendant provides assistance substantial enough to warrant filing a [motion to lower a defendant’s sentence], and we are not c onvinced that the gove rnment here erred significantly in its assessment.”). Mr. McDaniels’s motion to proceed in forma pauperis (I FP) is granted; he is authorized to proceed on appeal without pr epayment of fees, but he is nevertheless “required to pay the full amount of [the ] filing fee,” 28 U.S.C. § 1915(b)(1). Mr. McDaniels has also filed a motion seeki ng reimbursement of all filing fees he has paid in the district court and this court. He conte nds, without citing any legal authority, that he is not required to pay th ese fees because he solved the Bancroft murder. The motion seeking reimbursement is denied.8 IV. Conclusion The district court’s order denying Mr . McDaniels’s motions to compel an investigation is affirmed. The remainder of the appeal is dismissed for lack of subject-matter jurisdiction. Mr. McDaniels’s motion to proceed IFP on appeal is granted and he is reminded that he is oblig ated to continue making partial payments until the entire fee has been paid. He is not entitled to the re imbursement of any filing fees, however, so his motion for reim bursement is denied . All other pending motions are denied.

Entered for the Court
Mary Beck Briscoe Circuit Judge