* The case is unanimously ordered submitted without oral argument pursuant to

Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 30 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RANDALL CAMPBELL, Plaintiff - Appellant, v. STATE OF OKLAHOMA; SHERRY TODD, Defendants - Appellees. No. 98-6350 (D.C. No. CIV-98-560-C) (Western District of Oklahoma)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and LUCERO , Circuit Judges.

Plaintiff-appellant Randall Campbell appeals the di smissal of his pro se civil rights action under 42 U.S.C. § 1983 against the State of Oklahoma, the state District Attorney’s Office, and Assistant District Attorney Sherry Todd. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affir m.- 2 -

Campbell alleges violations of the Fifth, Sixth, an d Eighth Amendments to the federal Constitution arising out of his arrest and prosecution on state grand larceny charges. Specifically, he claims that Okla homa violated his due process and speedy trial rights due to unfounded prosecutio n and postponements of his court dates. Campbell also argues that he was subj ected to extended pretrial detention, in retaliation for refusal to sign a ple a agreement, which violated the constitutional prohibition against cruel and unusua l punishment. He seeks, inter alia, compensatory and punitive damages, injunctive relief from prosecution, and immediate release from custody. Defendants-appellees moved to dismiss Campbell’s cl aims. The district court referred the motion to a magistrate judge fora report and recommendation, pursuant to 28 U.S.C. § 636(b)(1). Campbell failed to file a timely response to the motion to dismiss, and the magistrate deemed th e motion confessed pursuant to W.D. Okla. LCvR7.1(e), which provides that “[a]ny motion, application or objection which is not opposed within eighteen (18) days may, in the discretion of the Court, be deemed confessed.” The magistrate al so noted “several legal impediments to further prosecution of this action o n the merits,” including exclusivity of habeas corpus (with prior exhaustionof state remedies) as a remedy for unlawful detention; absolute prosecutorial immu nity as to claims against Todd and District Attorney Macy; and the Anti-InjunctionAct, 28 U.S.C. § 2283, as a1 Because it was a matter left to the district court’s discretion under the relevant

local rule, the court certainly could, but was not compelled, to deem the motion confessed. SeeW.D. Okla. LCvR7.1(e)

. Because the district court’s order in no way suggests that it would have exercised its discretion otherwise had it not considered itself compelled, we conclude that even if the court understated the scope of its discretion under W.D. Okla. LCvR7.1(e), this would not constitute reversible error. - 3 - bar to injunctive relief against a pending state pr osecution. R. doc. 15 at 2-3. The magistrate recommended that Campbell’s claims b e dismissed without prejudice, and noted that failure to file a timely objection to the findings and recommendation would waive further review of facts and law by district or appellate court. The district court found that it “is compelled to f ind that this motion is deemed confessed,” because Campbell had failed to f ile a timely response to the motion to dismiss. 1 Also noting that “it appears that the Plaintiff h as not filed a timely objection or appeal” to the magistrate’s rec ommendation, the district court then ordered Campbell’s action dismissed with preju dice. R. doc. 17. The threshold question before us is whether Campbel l’s failure to file a timely objection to the magistrate’s recommendation waives appellate review of the legal issues therein. “[W]e have adopted a fir m waiver rule when a party fails to object to the findings and recommendations of the magistrate.” Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991). But “[t]he w aiver rule as a procedural bar need not be applied when the interests of justice so dictate.” Id

.- 4 -

Upon review of the record and the applicable law, w e conclude that the interests of justice exception does not apply to Campbell’s c laims. The magistrate’s order clearly stated Campbell’s responsibility to file ti mely objection and the consequences of failure to do so. Campbell’s claim of ignorance of the deadline thus does not, absent more, require application of the interests of justice exception. Because we perceive no compelling reaso n to overlook the waiver, we affirm the district court’s dismissal of Campbell’s suit. We note, however, that failure to object to the mag istrate’s conclusions does not necessarily waive the right to appeal the district court’s decision to dismiss the claims with prejudice, a legal conclusion distinct from those in the magistrate’s report. Campbell, however, does not r aise a challenge to this particular issue on appeal. We further note that the dismissal with prejudice o f Campbell’s claims for damages and injunctive relief under 42 U.S.C. § 198 3 does not bar Campbell from seeking habeas corpus relief under 28 U.S.C. § 2254 on his unlawful detention claim. Claims seeking release from custody could n ot properly be brought under 42 U.S.C. § 1983 because, as the magistrate judge c orrectly noted, 28 U.S.C. § 2254 is the exclusive vehicle for challenging the fact or length of custody. See Preiser v. Rodriguez , 411 U.S. 475, 499 n.14 (1973). Thus, the dismiss al of2 We express no view on the merits of such a potential habeas claim or whether it is

otherwise procedurally barred. - 5 - Campbell’s § 1983 suit cannot serve as a preclusive decision on the merits of his claim for relief from unlawful detention. 2 The judgment of the district court is hereby AFFIRMED . The mandate shall issue forthwith.
ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge