This order is not binding precedent, except under the doctrines of law of *

the case, res judicata, and collateral estoppel. The court generally disfavors the

citation of orders; nevertheless, an order may be cited under the terms and

conditions of 10th Cir. R. 36.3.

 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.

F I LED

United States Court of Appeals

Tenth Circuit

August 10, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ENCISO RODRIGO ACEVES,

Plaintiff-Appellant, No. 06-2017

v. (D. of N.M.)

GARLAND JEFFERS and R.

RODRIGUEZ,

Defendants-Appellees.

(D.C. No. CV-03-365-JB)

ORDER AND JUDGMENT

*

Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges. 

**

Enciso Rodrigo Aceves, a former federal prisoner appearing pro se, appeals

the district court’s dismissal of his civil rights complaint. Because we find that

Aceves failed to timely object to the magistrate judge’s proposed findings and

recommended disposition, we affirm the district court’s order. We further deny

Aceves’ motion to proceed in forma pauperis.
 CCCC, pursuant to a contract with the Federal Bureau of Prisons, houses 1

low-security criminal alien federal inmates.

-2-

I. Background

Enrico Rodrigo Aceves served 77 months at the Cibola County Correctional

Center (“CCCC”) in Milan, New Mexico for illegal reentry. During his 1

incarceration, he alleges that prison officials violated his constitutional rights in

the following manner: (1) imposing involuntary servitude by forcing him to work

in the prison kitchen; (2) failing to provide adequate medical care; (3) denying

him a position in the library; (4) denying him a transfer to a federal facility; 

(5) denying him meetings with various prison and state officials; (6) unjustifiably

segregating him from the prison population; and (7) physically abusing him. 

Based on these claims, he filed a civil rights action under 42 U.S.C. § 1983 in the

District of New Mexico. A magistrate judge recommended that Aceves’ claim of

involuntary servitude be dismissed for failure to state a claim upon which relief

can be granted, and that Aceves’ remaining claims be dismissed for failure to

exhaust. Aceves failed to respond to the magistrate’s recommendation and the

district court subsequently adopted the same.

II. Analysis

We construe a pro se plaintiff’s complaint liberally. Cummings v. Evans,

161 F.3d 610, 613 (10th Cir. 1998). Nonetheless, where a pro se plaintiff fails to

timely file objections to a magistrate’s recommendation, the plaintiff waives his
-3-

right to appellate review. Theede v. U.S. Dep’t of Labor, 172 F.3d 1262, 1267

(10th Cir. 1999). This “firm waiver” rule applies so long as the pro se plaintiff is

properly informed of the consequences of failing to object. Id. at 1268. 

Here, in a footnote on the first page of the magistrate’s recommendation,

the court stated in bold, “A party must file any objections within the ten (10) day

period if that party wants to have appellate review of the Proposed Findings and

Recommended Disposition. If no objections are filed, no appellate review will be

allowed.” This admonition was sufficient to apprise Aceves of the firm waiver

requirement. 

Although we may waive the requirements of this rule where the interests of

justice require, id. at 1268, we find no reason to do so here. It is true that Aceves

was released from prison while his suit was pending and was subsequently

deported to Mexico. However, he failed to meet his obligation under the local

rules to file a timely change of address with the lower court. Indeed, he waited

nearly eight months from the time of his release before filing his change of

address—nearly three months after the magistrate’s recommendation was filed

and over a month after the district court’s order was filed. Even so, the district

court gave Aceves ample opportunity to respond, sending him both the

magistrate’s recommendation and the order adopting the same on two separate

occasions, once to his former address and once to his current address.
-4-

Even were we to find an exception to the firm waiver rule, the district court

correctly concluded that Aceves’ involuntary servitude claim should be dismissed

for failure to state a claim and his remaining claims for failure to exhaust. First,

the court concluded, and we agree, a prisoner does not state a claim under the

Thirteenth Amendment for involuntary servitude where he is required to work

while incarcerated. The Thirteenth Amendment explicitly exempts incarcerated

prisoners from the involuntary servitude proscription. Second, Aceves has

conceded that he did not exhaust his remaining claims. The Prison Litigation

Reform Act (PLRA), 42 U.S.C. § 1997e(a), requires prisoners to totally and

properly exhaust claims before bringing suit in federal court. See Woodford v.

Ngo, 126 S. Ct. 2378 (2006) (requiring proper exhaustion); Ross v. County of

Bernalillo, 365 F.3d 1181, 1189–90 (10th Cir. 2004) (requiring total exhaustion).

Because Aceves has failed to do so, all of his remaining claims must be

dismissed.

III. Conclusion

Accordingly, for the reasons stated above, we affirm the district court’s

order. We further deny Aceves’ motion to proceed in forma pauperis.

Entered for the court

Timothy M. Tymkovich

Circuit Judge