UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________ 

ARMOND DAVIS ROSS, 

 Plaintiff-Appellant, 

v. 

WARDEN MIKE ADDISON, SGT. 

BUSH, DENNIS ROSE, GEORGE 

WILLIAMS, SAM PRESTON, MIKE 

McMILLEN, 

 Defendants-Appellees. 

No. 15-6159 

(D.C. No. 5:13-CV-00323-R) 

(W.D. Okla.) 

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ORDER AND JUDGMENT*

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Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges. 

_________________________________ 

Mr. Armond Davis Ross, an Oklahoma inmate, sued six correctional 

officers and administrators under 42 U.S.C. § 1983. The defendants filed a 

motion for dismissal or, alternatively, for summary judgment; and the 

 

*

 The parties have not requested oral argument, and we do not believe 

it would be helpful. As a result, we are deciding the appeal based on the 

briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 

 This order and judgment does not constitute binding precedent except 

under the doctrines of law of the case, res judicata, and collateral estoppel. 

But the order and judgment may be cited for its persuasive value under 

Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).

FILED 

United States Court of Appeals 

Tenth Circuit 

April 27, 2016

Elisabeth A. Shumaker 

Clerk of Court
2 

magistrate judge recommended dismissal of the claims against three 

defendants (Addison, Preston, and Rose) and denial of summary judgment 

for the three other defendants (Williams, Bush, and McMillen). 

 Mr. Ross did not object to the proposed dismissal of the claims 

against defendants Addison, Preston, and Rose, and the district court 

dismissed the claims against these defendants. Defendants Williams, Bush, 

and McMillen objected to the denial of their motion for summary 

judgment. The district judge sustained this objection and granted the 

defendants’ motion for summary judgment. After unsuccessfully seeking 

post-judgment relief, Mr. Ross appealed the grants of the motions for 

dismissal and summary judgment. We affirm. 

I. Mr. Ross waived any appeal point regarding dismissal of 

defendants Addison, Preston, and Rose. 

Mr. Ross did not object to the report and recommendation. In the 

absence of an objection, the district judge adopted the report and 

recommendation, leading to dismissal of the claims against defendants 

Addison, Preston, and Rose. Mr. Ross appeals, but he waived his right to 

appellate review by failing to object to the magistrate judge’s report and 

recommendation. 

 Generally, a party waives the right to appeal by failing to object to a 

magistrate judge’s report and recommendation. See Moore v. United States,
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950 F.2d 656, 659 (10th Cir. 1991) (“[F]ailure to make timely objection to 

the magistrate’s findings or recommendations waives appellate review of 

both factual and legal questions.”). An exception may be appropriate in 

rare cases where “the interests of justice so dictate.” Id. at 659. In 

applying this exception, we consider whether 

 the party who failed to object bears some responsibility for the 

impediment, 

 the conduct of the party who failed to object supports a 

plausible excuse or explanation for the failure to timely object, 

and 

 the issues raised on appeal involve special or considerable 

importance. 

Wirsching v. Colorado, 360 F.3d 1191, 1196-97 (10th Cir. 2004). 

 Mr. Ross argues that he did his best, he was disabled, and the State 

impeded his access to the courts and the prison law library.1

 These 

circumstances do not satisfy the exception because (1) Mr. Ross’s alleged 

impediments were not sufficiently onerous to preclude the filing of 

objections and (2) Mr. Ross is unlikely to prevail on the merits of his 

appellate arguments. For both reasons, we conclude that the interests of 

 

1 Mr. Ross also contends that the court is mistaken and that he did 

object to the magistrate judge’s report and recommendation. For this 

contention, Mr. Ross refers to an objection filed in September 2014. But 

that objection addressed an earlier report and recommendation involving 

unrelated matters.
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justice do not warrant an exception in this case. Mr. Ross waived his right 

to appeal; as a result, we affirm the dismissal of the claims against 

defendants Addison, Preston, and Rose. 

II. Summary judgment was correctly granted to defendants Williams, 

Bush, and McMillen. 

 Mr. Ross claims that defendants Williams, Bush, and McMillen 

violated the Eighth Amendment by failing to provide adequate protection 

from a cellmate. According to Mr. Ross, he told the three officers that he 

needed to be moved to another cell because he was being stalked and 

beaten by his cellmate. Defendant Bush allegedly told the cellmate that he 

would be moved, prompting the cellmate to blame Mr. Ross for the move. 

But defendant Bush then said that there had been a change of plans 

concerning the cellmate’s move. Mr. Ross and his cellmate consulted 

separately with defendant McMillen, and officials postponed the move for 

a few days. During the postponement, the cellmate battered Mr. Ross. 

 Defendants Williams, Bush, and McMillen moved for summary 

judgment based on qualified immunity, arguing in part that Mr. Ross had 

agreed to postpone the cellmate’s move. In support, defendant McMillen 

stated under oath that he had spoken separately to Mr. Ross and the 

cellmate and that both men had agreed to wait until the following Monday, 

when unit staff would be available to determine whether a cell 
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reassignment would be appropriate. Mr. Ross did not dispute this sworn 

account or present any contrary evidence. 

 For the summary judgment ruling, we engage in de novo review, 

applying the same test applicable in district court. Doe v. Bagan, 41 F.3d 

571, 573 (10th Cir. 1994). The district court was to grant summary 

judgment if there was “no genuine dispute as to any material fact and the 

[movants were] entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). Applying this test, the district court had to view the evidence 

favorably to Mr. Ross (as the non-movant) and determine whether a 

reasonable jury could find in his favor. Macon v. United Parcel Services, 

Inc., 220 F. 3d 708, 712 (10th Cir. 2014). 

 We apply this standard against the backdrop of an issue involving 

qualified immunity. The defendants enjoy qualified immunity if their 

conduct did “not violate clearly established rights of which a reasonable 

government official would have known.” Hulen v. Yates, 322 F.3d 1229, 

1236 (10th Cir. 2003). Mr. Ross bears the burden to demonstrate that 

(1) the defendants’ conduct violated a constitutional or statutory right and 

(2) the constitutional or statutory right was clearly established at the time 

of the violation. Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010). 
6 

 To create a triable issue of fact under the Eighth Amendment, Mr. 

Ross had to present evidence of “deliberate indifference to a substantial 

risk of serious harm.” Farmer v. Brennan, 211 U.S. 825, 828 (1994). The 

defendants were deliberately indifferent only if they were consciously 

aware of the risk when failing to act. Id. at 847. 

 We agree with the district court’s application of this test. The 

ultimate issue was whether Mr. Ross had agreed to postpone the move. The 

defendants presented sworn testimony that Mr. Ross had agreed to the 

postponement, and Mr. Ross did not present any contrary evidence. As a 

result, no reasonable fact-finder could conclude that prison officials 

consciously disregarded a substantial risk of harm to Mr. Ross. If he felt 

sufficiently safe to postpone the move, prison officials could not have been 

consciously aware of a substantial risk. As a result, the district court 

correctly granted summary judgment to defendants Williams, Bush, and 

McMillen based on qualified immunity. 

III. Disposition 

We affirm. 

IV. Status to Proceed in Forma Pauperis 

 Mr. Ross seeks leave to proceed in forma pauperis. This request is 

granted. But Mr. Ross must make monthly installments toward the filing 
7 

fee, as required by the Prison Litigation Reform Act. See 28 U.S.C. 

§ 1915(b)(1) (2012). 

 

 Entered for the Court 

 Robert E. Bacharach 

 Circuit Judge