UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

__________________ _______________ ARMOND DAVIS ROSS,
Pl aintiff-Appellant,

v. WARDEN MIKE ADDISON, SGT. BUSH, DENNIS ROSE, GEORGE WILLIAMS, SAM PR ESTON, MIKE McMILLEN, Defendants-Appellees. No. 15-6159 (D.C. No. 5:13-CV-00323-R) (W.D. Okla.)

__________________ _______________ ORDER AND JUDGMENT *

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

__________________ _______________ Mr. Armond Davis Ross, an Oklaho ma inmate, sued six correctional officers and administrators under 42 U.S.C. § 1983. The defendants filed a motion for dismissal or, alternativ ely, for summary judgment; and the

* The parties have not requested or al 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 judgme nt does not constitute bi nding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. But the order and judgment may be ci ted 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 Court2 magistrate judge recommended dismi ssal of the claims against three defendants (Addison, Pres ton, and Rose) and denial of summary judgment for the three other de fendants (Williams, Bu sh, and McMillen). Mr. Ross did not object to the proposed dismissal of the claims against defendants Addiso n, Preston, and Rose, and the district court dismissed the claims against these de fendants. Defendant s Williams, Bush, and McMillen objected to the denial of th eir motion for summary judgment. The district judge sustained this ob jection and granted the defendants’ motion for summary judg ment. After unsuccessfully seeking post-judgment relief, Mr. Ross appeal ed 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 re port and recommend ation. In the absence of an objectio n, the district judge adopted the report and recommendation, leading to dismissal of the clai ms against defendants Addison, Preston, and Rose. Mr. Ross appeals, but he waived his right to appellate review by failing to object to the magist rate judge’s report and recommendation. Generally, a party waives the right to appeal by failing to object to a magistrate judge’s repor t and recommendation. See Moore v. United States ,3 950 F.2d 656, 659 (10th Cir. 1991) (“[F]ailure to make timely objection to the magistrate’s findings or recommendations waiv es appellate review of both factual and legal questions.”). An exception may be appropriate in rare cases where “the intere sts 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 i nvolve special or considerable importance. Wirsching v. Colorado , 360 F.3d 1191, 1196-97 (10th Cir. 2004). Mr. Ross argues that he did his be st, 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 one rous to preclude the filing of objections and (2) Mr. Ro ss is unlikely to prevail on the merits of his appellate arguments. For bo th reasons, we conclude that the interests of

1 Mr. Ross also contends that the co urt is mistaken and that he did object to the magistrate judge’s report and re commendation. For this contention, Mr. Ross refers to an ob jection filed in September 2014. But that objection addressed an earlier report and recomme ndation involving unrelated matters.4 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 gr anted to defendants Williams, Bush, and McMillen. Mr. Ross claims that defendant s Williams, Bush , and McMillen violated the Eighth Amendment by failing to provide adequate protection from a cellmate. According to Mr. Ross, he told th e three officers that he needed to be moved to another ce ll because he was being stalked and beaten by his cellmate. De fendant Bush allegedly to ld the cellmate that he would be moved, prompting the cellm ate 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 postpon ed the move for a few days. During the postponement, the cellm ate battered Mr. Ross. Defendants Williams, Bush, a nd McMillen moved for summary judgment based on qualified immunity , arguing in part that Mr. Ross had agreed to po stpone the cellmate’s move. In support, defe ndant 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 cell5 reassignment would be appropriate. Mr. Ross did not dispute this sworn account or present any contrary evidence. For the summary judgme nt ruling, we engage in de novo review, applying the same test appli cable 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 a ny material fact and the [movants were] ent itled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Applying this test, the distri ct court had to view the evidence favorably to Mr. Ross (as the non-movant) and determine whether a reasonable jury coul d 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 establishe d rights of whic h a reasonable government official would have known.” Hulen v. Yates , 322 F.3d 1229, 1236 (10th Cir. 2003 ). Mr. Ross bears the burd en to demonstrate that (1) the defendants’ conduct violated a constitutional or statutory right and (2) the constitutional or statutory right wa s 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 eviden ce of “deliberate indiffe rence to a substantial risk of serious harm.” Farmer v. Brennan , 211 U.S. 825, 828 (1994). The defendants were deliberately indiffere nt only if they were consciously aware of the risk wh en failing to act. Id

. at 847. We agree with the district cour t’s application of this test. The ultimate issue was whether Mr. Ross ha d agreed to post pone 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 coul d conclude that prison officials consciously disregarded a substantial ri sk of harm to Mr. Ross. If he felt sufficiently safe to post pone the move, prison offici als could not have been consciously aware of a substantial ri sk. As a result, the district court correctly granted summary judgment to defendants Williams, Bush, and McMillen based on qu alified immunity.
III. Disposition We affirm.
IV. Status to Proceed in Forma Pauperis Mr. Ross seeks leave to proceed in forma paupe ris. This request is granted. But Mr. Ross must make monthly installments toward the filing7 fee, as required by the Prison Litigat ion Reform Act. See 28 U.S.C. § 1915(b)(1) (2012).

Entered for the Court

Robert E. Bacharach Circuit Judge