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, 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 

(continued) 

FILED 

United States Court of Appeals

Tenth Circuit 

May 2, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

_________________________________ 

Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges. 

_________________________________ 

Kevin Wayne McDaniels, a federal prisoner proceeding pro se, appeals the 

district court’s order denying his motions to compel an investigation, to enter a 

default against the defendants, and to amend his complaint. The district court 

adopted the recommendation of a magistrate judge. We have subject-matter 

jurisdiction over only the portion of the order 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 order. Therefore, we lack 

jurisdiction to review it. Accordingly, we affirm in part and dismiss in part. 

I. Background 

 Mr. McDaniels maintains that, while in prison, another prisoner told him who 

had committed the unsolved 2008 murder of Jeffrey Bancroft. He asserts that he told 

this information to the defendants, who are law-enforcement personnel, believing that 

he would be entitled to a reduction of his sentence. He claims that he is now in 

danger from other prisoners who know that he is an informant. In his amended 

complaint, Mr. McDaniels sought monetary damages against the defendants for their 

 

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. 
3 

failure to arrange a sentence reduction in exchange for his information about the 

Bancroft murder. 

 Mr. McDaniels filed several motions in the district court. In the order under 

review here, the court addressed and denied the three motions referred to above. On 

appeal, however, Mr. McDaniels argues (1) the defendants breached their promise of 

a sentence reduction; (2) the magistrate judge and the district judge conspired with 

the defendants to obstruct justice, “defraud[] 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 investigating the murder; (3) he was denied 

meaningful access to the courts because he deserves a sentence 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 (10th 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. McDaniels’s motions seeking to compel the 

defendants to investigate the Bancroft murder. To the extent Mr. McDaniels’s 

appellate briefs can be construed 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 jurisdiction over interlocutory orders refusing 

injunctions); Petrella v. Brownback, 787 F.3d 1242, 1254 (10th Cir. 2015) (“[I]t is 

well established that we have jurisdiction to review interlocutory orders expressly 

denying injunctive relief pursuant to 28 U.S.C. § 1292(a)(1).”). Even though we 

have jurisdiction, we do not address this claim because Mr. McDaniels did not file an 

objection to the magistrate judge’s report and recommendation. 

 Under our firm-waiver rule, Mr. McDaniels’s failure to object “waives 

appellate review of both factual and legal questions.” Casanova v. Ulibarri, 

595 F.3d 1120, 1123 (10th Cir. 2010) (internal quotation marks 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 because 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, any party may serve and file written 

objections. Failure to object may constitute a waiver of objections upon 

subsequent review. 
5 

R. Vol. I, at 278. 

We also determine that the second exception—interests of justice—does not 

warrant granting Mr. McDaniels relief from the firm-waiver rule. “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 plausibility of his explanation for 

not complying and the importance of the issues raised.” Klein v. Harper, 777 F.3d 

1144, 1147 (10th Cir. 2015). Mr. McDaniels does not claim that he attempted to file 

an objection to the magistrate judge’s report and recommendation. 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 factors 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, which (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 district court’s determination that “the Supreme Court has 

repeatedly held that ‘a private citizen lacks a judicially cognizable interest in the 

 1

 Defendants Goff, Scott, and Caldwell 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 the district court docket sheet does not reflect that such a 

document was filed, the district court’s order states that no objection to the report and 

recommendation was filed, and Mr. McDaniels does not claim 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 Bancroft 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 claim as inadequately briefed because the claim was 

addressed in only conclusory fashion). Consequently, we do not address 

Mr. McDaniels’s challenge to the ruling denying his motions seeking to compel the 

defendants to investigate the Bancroft murder. 

 The remaining rulings by the district court are not a final order so we lack 

jurisdiction to address them. See 28 U.S.C. 1291 (providing that federal courts of 

appeals have jurisdiction over all final decisions of the district courts). “As a general 

rule, this court has jurisdiction over only final orders, those 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 Union (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 motions to enter a default against the defendants and to 

amend his complaint did not end the litigation on the merits. 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 motion for appointment of counsel. We 

also deny his “Motion Requesting an Order by the Court for the Defendants to 

Contact Plaintiff[’]s U.S. Atty Lance Crick, Greenville, S.C. to Make Sure Plaintiff 

Receives a Downward Departure for His Assistance” and “Motion to Compel the 

U.S. Attorney[’]s Office as a Whole to file a Downward Departure for Substantial 

Assistance in Solving the Jeffrey Bancroft Murder.” Both motions ask this court to 

require prosecutors to seek a sentence reduction 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 convinced that the government here erred 

significantly in its assessment.”). 

 Mr. McDaniels’s motion to proceed in forma pauperis (IFP) is granted; he is 

authorized to proceed on appeal without prepayment 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 seeking reimbursement of all filing fees he has 

paid in the district court and this court. He contends, without citing any legal 

authority, that he is not required to pay these 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 obligated to continue making partial payments 

until the entire fee has been paid. He is not entitled to the reimbursement of any 

filing fees, however, so his motion for reimbursement is denied. All other pending 

motions are denied. 

Entered for the Court 

Mary Beck Briscoe 

Circuit Judge