*This order and judgment is not binding precedent, except under the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.

**The Honorable Frank J. Magill, Senior Circuit Judge, United States Court

of Appeals for the Eighth Circuit, sitting by designation.

F I L E D

United States Court of Appeals

Tenth Circuit

MAY 24 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

QUINTERO and KANSAS

ADVOCACY AND PROTECTIVE

SERVICES, INC., et al.,

Plaintiffs-Appellees,

v.

ENCARNACION, ROCHELLE

CHRONISTER, as the SECRETARY

OF SOCIAL AND

REHABILITATION SERVICES OF

KANSAS, and MANI LEE, as the

SUPERINTENDENT of LARNED

STATE HOSPITAL, et al.,

Defendants-Appellants.

No. 98-3129

(D.C. No. 96-1205-MLB)

(Kansas)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, MAGILL,** and EBEL, Circuit Judges.
-2-

At issue in this interlocutory appeal is whether the Eleventh Amendment

bars an action by Kansas Advocacy and Protection Services, Inc. (KAPS) against 

Rochelle Chronister, Secretary of the Department of Social and Rehabilitation

Services, and Mani Lee, Superintendent of Larned State Hospital. Because we

conclude that defendants failed to object to the portion of the magistrate judge’s

Report and Recommendations which concluded the Eleventh Amendment does not

preclude KAPS’s action against Ms. Chronister and Mr. Lee, we dismiss the

appeal.

KAPS and Rita Quintero, a former patient at Larned State Hospital, brought

suit against numerous state employees, in their individual and official capacities,

who were involved with Ms. Quintero’s commitment and treatment. Ms. Quintero

sought monetary damages for alleged violations of her constitutional rights;

KAPS sought prospective injunctive and declaratory relief. Defendants responded

by filing a motion to dismiss, asserting inter alia that the Eleventh Amendment

barred all of the official capacity actions against them. The case was referred to a

magistrate judge who determined Ms. Chronister and Mr. Lee “are the only

defendants in a position to carry out injunctive relief,” Aplt. App. at 83, and so

were amenable to suit notwithstanding the Eleventh Amendment. The magistrate 
1

 Not surprisingly, plaintiffs did not object to the Report’s recommendation

that the Eleventh Amendment does not preclude suit against Ms. Chronister and

Mr. Lee. Instead, they objected to the magistrate judge’s recommendation that all

other defendants be dismissed in their official capacities. In their response to

plaintiffs’ objections, defendants cited Idaho v. Coeur D’Alene Tribe of Idaho,

521 U.S. 261 (1997), and noted that it “adds considerable restrictions on Ex Parte

Young, 209 U.S. 123 (1908) injunction applications.” Aplt. App. at 115. 

However, there is not even a sentence arguing that Coeur D’Alene (or any other

authority for that matter) established Eleventh Amendment immunity as to Ms.

Chronister and Mr. Lee.

-3-

judge recommended that the official-capacity claims against all the other

defendants be dismissed. 

The district court set page limits for memoranda seeking review of the

magistrate judge’s report and required a consolidated brief. Various defendants

stated their objections in a memorandum brief several pages short of the page

limit. While raising a number of other issues, the only discussion of the Eleventh

Amendment in that brief was as follows:

The defendants do not challenge the Report’s recommendation in

their favor on the Eleventh Amendment bars, but do respectfully

reserve their right of response to any briefing of the plaintiffs on this

issue.

Id. at 103.1

 After considering the parties’ objection to the report, the district

court adopted the magistrate judge’s recommendations on Eleventh Amendment

immunity in their entirety. Id. at 125-26. This interlocutory appeal followed. 

See id. at 171.
-4-

“This circuit has adopted a firm waiver rule under which a party who fails

to make timely objection to the magistrate’s findings and recommendations

waives appellate review of both factual and legal questions.” Talley v. Hesse, 91

F.3d 1411, 1412 (10th Cir. 1996); see also Frontier Refining Inc. v. Gorman-Rupp

Co., 136 F.3d 695, 706 (10th Cir. 1998); Pippinger v. Rubin, 129 F.3d 519, 533-

34 (10th Cir. 1997); Niehaus v. Kansas Bar Assn’n, 793 F.2d 1159, 1164-65 (10th

Cir. 1986). There is an exception “when the ends of justice dictate otherwise or

when the magistrate’s order does not clearly apprise a pro se litigant of the

consequences of a failure to object.” Talley, 91 F.3d at 1413; see also Moore v.

United States, 950 F.2d 656, 659 (10th Cir. 1991).

Ms. Chronister and Mr. Lee failed to object to the magistrate judge’s

conclusion that the Eleventh Amendment does not preclude actions against them

in their official capacities. There is simply nothing in defendants’ memorandum

brief to the district court to indicate otherwise. Defendants contend that their

“brevity” was mandated by the district court’s imposition of strict page limits. 

However, they did not briefly object to this portion of the report, they failed to

object at all. Their decision to use only seven of the ten pages allocated to them

further undercuts this argument. Surely, they could have fit in a paragraph or two

articulating this objection in the extra three pages. Their failure to do so
2

 We are not persuaded by defendants’ belated attempt to transmogrify the

Eleventh Amendment issue into one of standing. 

3

 Of course, nothing in this decision precludes Ms. Chronister and Mr. Lee

from raising before the district court the issue of Eleventh Amendment immunity

at a later time in the trial proceedings.

-5-

constitutes waiver for the purposes of this interlocutory appeal.2

 See Pippinger,

129 F.3d at 533-34.

Having no issue before us, we DISMISS this appeal.3

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge