FILED

United States Court of Appeals

Tenth Circuit

November 28, 2012

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GLENN DAVIS,

Plaintiff - Appellant,

v.

ARISTEDES ZAVARAS, Director,

CDOC; COLORADO DEPARTMENT

OF CORRECTIONS; JIM MOORE,

Offender Services; LT. PIPER, DOC

Employee, Limon, CO; MAJOR

WILLIAM BRUNELL, CDOC

Employee, Buena Vista, CO; JAMES

LANDER, CDOC Mental Health

Employee, Canon City, CO: BURL

MCCULLAR, SOTMP Program

Manager, CDOC Mental Health

Employee, Canon City, CO,

Defendants - Appellees.

No. 12-1106

(D.C. No. 1:09-CV-00266-REB-BNB)

(D. Colo.)

ORDER AND JUDGMENT*

Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.**

*

 This order and judgment is not binding precedent, except under the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

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Glenn Davis, a state prisoner appearing pro se, appeals the district court’s

order denying his Rule 59(e) motion for reconsideration and denying relief on his

42 U.S.C. § 1983 complaint against various state employees. We have

jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.

Background

Mr. Davis was convicted of various sex offenses and is incarcerated by the

Colorado Department of Corrections. R. 582–83. On February 9, 2009, Mr.

Davis filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that

prison officials violated his constitutional rights by censoring his reading

materials, failing to protect him from an attack by another inmate, and placing

him in a correctional facility without a sex offender treatment program. R. 7–18. 

Defendants filed a motion to dismiss, and the magistrate judge recommended that

the motion be granted in part. R. 117. Mr. Davis obtained two extensions of time

to file objections, but never filed any objections. R. 140. Thereafter, the district

court adopted the recommendation, leaving just two claims remaining. R. 141. 

Defendants then moved for summary judgment. R. 168. On November 10, 2010,

the magistrate judge recommended that the motion be granted. R. 598. The

recommendation advised that the parties had fourteen days to serve and file

objections, and the failure to do so would waive appellate review. R. 598. The

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court granted Mr. Davis three extensions of time to file objections—the final

extension until February 21, 2011—but none were filed. R. 599–600. On

February 23, 2011, the district court adopted the recommendation of the

magistrate judge and granted Defendants’ motion for summary judgment. R. 601. 

On March 10, 2011, Mr. Davis filed a “Motion for Reconsideration

Pursuant to Rule Fed. Civ. 59(e)” in which he explained that “unusual and

extenuating circumstances” prevented him from meeting the court’s deadline, and

requested another extension to file objections. R. 609–11. The district court

denied the motion. Davis v. Zavaras, 09-cv-00266-REB-BNB, 2012 WL 638783,

at *1 (D. Colo. Feb. 28, 2012). Our review is for an abuse of discretion. Barber

ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009). 

Discussion

As the district court noted, “a motion for reconsideration is appropriate

where the court has misapprehended the facts, a party’s position, or the

controlling law.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th

Cir. 2000). The district court did not abuse its discretion in denying the motion

as Mr. Davis did not demonstrate any of these grounds for reconsideration. See

Davis, 2012 WL 638783, at *1–2. Rather, Mr. Davis sought another extension of

time. However, the time to file objections is not infinite. The magistrate judge

issued his recommendation on November 10, 2010. The court granted extensions

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until February 21, 2011. As a result, Mr. Davis had 103 days to file his

objections. Mr. Davis had far greater time than customary to file his objections,

notwithstanding the circumstances he identified. 

Finally, to the extent that Mr. Davis challenges the merits of the district

court’s order granting summary judgment, he has waived this argument under our

firm waiver rule. See Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008)

(“The failure to timely object to a magistrate’s recommendations ‘waives

appellate review of both factual and legal questions.’” (quoting Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991))). “There are two exceptions when the

firm waiver rule does not apply: ‘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.’” Id. (citation omitted). Neither

exception applies here. 

First, the magistrate judge informed Mr. Davis that he had fourteen days to

file an objection before waiving appellate review. The recommendation clearly

advises that “the parties have [fourteen] days after service of this recommendation

to serve and file specific, written objections [and] failure [to do so] . . . waives

appellate review of both factual and legal questions.” R. 598. Mr. Davis was

aware of this pending deadline because he requested several extensions to prolong

this period. 

Second, the “interests of justice” do not favor review. Under this

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exception, we consider “a pro se litigant’s effort to comply, the force and

plausibility of the explanation for his failure to comply, and the importance of the

issues raised.” Duffield, 545 F.3d at 1238 (citation omitted). The first two

considerations weigh against Mr. Davis because of his repeated requests for

extensions and failure to file objections. Nor are we persuaded that the third

consideration, which we review under a plain error analysis, is relevant because

Mr. Davis has not demonstrated plain error vis-a-vis the district court’s resolution

of his claims.

AFFIRMED. We GRANT the motion for leave to proceed on appeal

without prepayment of costs or fees and remind Mr. Davis that he is obligated to

continue making partial payments until the entire fee has been paid.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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