* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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 desig nation. 

## 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 th e Eleventh Amendment bars an action by Kansas Advocacy and Protection Se rvices, Inc. (KAPS) against Rochelle Chronister, Secretary of the Department of Social and Rehabilitation Services, and Mani Lee, Superintendent of Larned St ate Hospital. Because we conclude that defendants failed to object to the po rtion of the magistrate judge’s Report and Recommendations which concluded the Elev enth 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 ind ividual and official capacities, who were involved with Ms. Quintero’s commitment an d treatment. Ms. Quintero sought monetary damages for alleged violations of h er constitutional rights; KAPS sought prospective injunctive and declaratory relief. Defendants responded by filing a motion to dismiss, asserting inter aliathat the Eleventh Amendment barred all of the official capacity actions againstthem. 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 re lief,” Aplt. App. at 83, and so were amenable to suit notwithstanding the Eleventh Amendment. The magistrate1 Not surprisingly, plaintiffs did not object to th e 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 cap acities. 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 consid erable restrictions on Ex Parte Young, 209 U.S. 123 (1908) injunction applications.” Ap lt. App. at 115. However, there is not even a sentence arguing that Coeur D’Alene (or any other authority for that matter) established Eleventh Ame ndment 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 se eking review of the magistrate judge’s report and required a consolidat ed brief. Various defendants stated their objections in a memorandum brief sever al 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 recomm endation 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 r eport, the district court adopted the magistrate judge’s recommendation s 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 findin gs and recommendations waives appellate review of both factual and legal q uestions.” Talley v. Hesse , 91 F.3d 1411, 1412 (10 thCir. 1996); see also Frontier Refining Inc. v. Gorman-Rupp
Co. , 136 F.3d 695, 706 (10 thCir. 1998); Pippinger v. Rubin , 129 F.3d 519, 533- 34 (10 thCir. 1997); Niehaus v. Kansas Bar Assn’n , 793 F.2d 1159, 1164-65 (10 th Cir. 1986). There is an exception “when the ends o f justice dictate otherwise or when the magistrate’s order does not clearly appris e 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 pre clude actions against them in their official capacities. There is simply noth ing in defendants’ memorandum brief to the district court to indicate otherwise. Defendants contend that their “brevity” was mandated by the district court’s impo sition of strict page limits. However, they did not briefly object to this portio n 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 coul d have fit in a paragraph or two articulating this objection in the extra three page s. Their failure to do so2We 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 interlo cutory 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