UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DANIEL BAGWELL, Plaintiff - Appellant,

v. SAFEWAY DENVER MILK PLANT, Defendant - Appellee. No. 11-1267 (D.C. No. 1:11-CV-00162-WYD-KMT) (D. Colo.)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, MURPHY and MATHESON , Circuit Judges.

In January 2011, Daniel Bagwell filed a pro se complaint in the United States

District Court for the District of Colorado against his former em ployer, Safeway Denver Milk Plant (“Safeway”). In his complain t, Mr. Bagwell asserted claims for sex

discrimination and retaliation under Title V II of the Civil Rights Act of 1964. Mr. Bagwell included only two factual assertions in his complaint—that (1) his “hours

* After examining appellant = s brief and the appellate record, this panel has determined unanimously that oral argument wo uld not materially assi st the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argu ment. This order and judgment is not binding precedent, except under the doctri nes of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### August 25, 2011

Elisabeth A. Shumaker Clerk of Court-2- changed,” and (2) he experienced “career-e nding performance evaluations.” Safeway filed a motion to dismiss, arguing that Mr. Bagwell’s complaint di d not comply with Rules 8(a)(2) 1 and 12(b)(6) 2 of the Federal Rules of Civil Procedure. Mr. Bagwell did not respond to the motion. The district court referred Safeway’ s motion to a magistrate judge, who recommended granting the motion. In suppor t of this recommendation, the magistrate judge stated that Mr. Bagwell “ha[d] failed to allege facts sufficient to maintain a claim

for sex discrimination.” Bagwell v. Safeway Denver Milk Plant , No. 11-cv-00162-WYDKMT, 2011 WL 2144632, at *4 (D. Colo. May 12, 2011) (“Ba gwell I”). She also stated that even when construed liberally, Mr. Ba gwell’s complaint contained “absolutely no factual allegations to support an inference th at [his] termination was in any way because of or due to his gender.” Id. at *5. Finally, the magistrate judge stated that Mr. Bagwell’s complaint was “en tirely devoid of sufficient facts to state a claim for

retaliation.” Id. Mr. Bagwell was required to file any objections to the Recommendation within fourteen days. He received noti ce that “a party’s objections to [a] magistrate judge’s . . . recommendation must be both timely and spec ific” and that failure to satisfy those

1 Rule 8(a)(2) provides that “[a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”

2 Rule 12(b)(6) requires that a complaint “state a clai m upon which relief can be granted.”-3- requirements would result in waiver of de novo review by a district or appellate court. Id. at 90 (citing United States v. 2121 East 30th Street , 73 F.3d 1057, 1059-60 (10th Cir. 1996)). Eight days after receiving the Reco mmendation, Mr. Bagwell filed a document labeled “Written Objections.” In the document, Mr. Bagwell did not object to any of the magistrate judge’s specific findings or recomme ndations. Instead, he requested that his “case be reviewed by the Supreme Court of the United States of America on the grounds that Title VII is unconstitutional and violates [his ] civil rights.” ROA, Vol. 1, at 92. The district court reviewed Mr. Bagwell’s “Writte n Objections” and issued an order affirming and adopting the magistrate judge’s recommendation. Bagwell v. Safeway Denver Milk

Plant , No. 11-cv-00162-WYD-KMT, 2011 WL 2135357 (D. Colo. May 31, 2011). In its order, the district court noted that timely written objections to a magistrate judge’s recommendation generally necessitate de novo review. But the district court concluded that Mr. Bagwell had “waived de novo review” because he “did not object to any of the [magistrate judg e’s] specified proposed findings or recommendations.” Id. at *2. Additionally, the district court noted that “even under a de novo review,” it would affirm the magistrate judge’s “thoro ugh and well-reasoned” recommendations. Id. In the instant appeal, Mr. Bagwell challenges the district court’s order dismissing his claims. As the district court noted in its order, th is circuit has “adopted a firm waiver rule when a party fails to object to the findi ngs and recommendations of [a] magistrate [judge].” Moore v. United States , 950 F.2d 656, 659 (10th Cir. 1991). Under the firm-4- waiver rule, failure to make timely and sufficiently specific objections to a magistrate judge’s “findings or recommenda tions waives appellate review of both factual and legal questions.” Id. ; see also 2121 East 30th Street , 73 F.3d at 1060 (“[A] party’s objections to the magistrate judge’s report and recommenda tion must be both timely and specific to preserve an issue for de novo review by the di strict court or for appellate review.”). The firm waiver rule does not apply: “when (1) a pro se litigant has not been informed of the time period for objecting and th e consequences of failing to object, or when (2) the ‘interests of justice’ require review.” Morales-Fernandez v. INS , 418 F.3d 1116, 1119 (10th Cir. 2005).

Even when construed liberally, Mr. Bagwell’s pro se brief to this court does not address the firm waiver rule or argue that eith er of its exceptions applies in this case. See Ogden v. San Juan County , 32 F.3d 452, 455 (10th Cir. 1994) (noting that “we . . . liberally construe pro se pleadings”). Notwithstanding this lack of argument, we have conducted a thorough review of the record and conclude that neither exception applies here. The first exception does not apply beca use the magistrate judge expressly informed Mr. Bagwell of the time period for objectin g, the need to obj ect with sufficient specificity, and the consequen ces of failing to do either. The interests of justice exception does not apply because Mr. Bagwell does not challenge any of the magistrate judge’s reco mmendations in his brief to this court and

because our review of the record does not indicate that reversal is necessary or warranted. “Among the factors this court has consider ed in determining wh ether to invoke the-5- interests-of-justice exception are (1) a pro se litigant’s efforts to co mply, (2) the force and plausibility of the explanation for his failure to comply, and (3) the importance of the

issues raised.” Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010) (quotations omitted). We have previously stated that determining the im portance of the issues raised by a litigant is similar to plain error review in that it “expressly includes review of a litigant’s unobjected-to substantiv e claims on the merits.” Duffield v. Jackson , 545 F.3d 1234, 1238 (10th Cir. 2008) (quot ations omitted). Plain error is “(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotations omitted).

All of the factors considered in our inte rests of justice exception weigh against Mr. Bagwell. First, Mr. Bagwell made no effort in his “Written Objections” to specifically challenge or object to any of the magistra te judge’s findings or recommendations. Second, Mr. Bagwell has offered no explana tion for his failure to comply with the requirement that all objections be sufficien tly specific “to focus the district court’s attention on the factual and legal issues that are truly in dispute.” 2121 East 30th Street , 73 F.3d at 1060. Finally, after reviewing th e record, we see no basis for suspending the firm waiver rule for plain error. In his Complaint, Mr. Bagwell assert ed claims for sex discrimination and retaliation. The magistrate judge concl uded that he had not stated a valid sex discrimination claim because his complaint c ontained “absolutely no factual allegations to support an inferen ce that [his] terminati on was in any way becaus e of or due to his-6- gender.” Bagwell I , 2011 WL 2144632, at *5. She also stated that Mr. Bagwell’s Complaint was “entirely devoid of sufficient facts to state a claim for retaliation.” Id. On appeal, Mr. Bagwell does not challenge either of these conclusions, and nothing in our review indicates that the magistrate or district court committed an error warranting reversal. In sum, neither Mr. Bagwell’s ar guments on appeal, nor any material in the record, convinces us that app lication of the firm waiver ru le in this case would be contrary to the inte rests of justice. We therefore hold that Mr. Bagwell waiv ed appellate review by failing to file specific objections to the magistrate judge’s recommendation. We AFFIRM the judgment of the district court and DISMISS this matter.

ENTERED FOR THE COURT

Scott M. Matheson, Jr. Circuit Judge