*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 dismissal 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 affirm.
- 2 -

Campbell alleges violations of the Fifth, Sixth, and Eighth Amendments to

the federal Constitution arising out of his arrest and prosecution on state grand

larceny charges. Specifically, he claims that Oklahoma violated his due process

and speedy trial rights due to unfounded prosecution and postponements of his

court dates. Campbell also argues that he was subjected to extended pretrial

detention, in retaliation for refusal to sign a plea agreement, which violated the

constitutional prohibition against cruel and unusual 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 claims. The district

court referred the motion to a magistrate judge for a 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 the 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 also noted “several legal

impediments to further prosecution of this action on the merits,” including

exclusivity of habeas corpus (with prior exhaustion of state remedies) as a remedy

for unlawful detention; absolute prosecutorial immunity as to claims against Todd

and District Attorney Macy; and the Anti-Injunction Act, 28 U.S.C. § 2283, as a
1 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. See W.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 prosecution. R. doc. 15 at 2-3. 

The magistrate recommended that Campbell’s claims be 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 find that this motion is

deemed confessed,” because Campbell had failed to file a timely response to the

motion to dismiss.1 Also noting that “it appears that the Plaintiff has not filed a

timely objection or appeal” to the magistrate’s recommendation, the district court

then ordered Campbell’s action dismissed with prejudice. R. doc. 17.

The threshold question before us is whether Campbell’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 firm 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 waiver 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, we conclude that the interests

of justice exception does not apply to Campbell’s claims. The magistrate’s order

clearly stated Campbell’s responsibility to file timely 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 reason to overlook the waiver, we

affirm the district court’s dismissal of Campbell’s suit. 

We note, however, that failure to object to the magistrate’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 raise a challenge to this

particular issue on appeal. 

We further note that the dismissal with prejudice of Campbell’s claims for

damages and injunctive relief under 42 U.S.C. § 1983 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 not properly be brought under

42 U.S.C. § 1983 because, as the magistrate judge correctly 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 dismissal of
2We 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