UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

DONALD E. FYMBO, 

 Plaintiff - Appellant, 

v. 

CITY AND COUNTY OF DENVER, 

COLORADO; MITCHELL R. 

MORRISEY, District Attorney; ALFRED 

HARRELL, Denver County Judge; JOHN 

M. LIETZ, Detective, Denver Police 

Department; THE STATE OF 

COLORADO; FRANK MACIAS; 

ROBERT KENNEY, 

 Defendants - Appellees. 

No. 15-1016 

(D.C. No. 1:14-CV-00841-PAB-BNB) 

(D. Colo.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before TYMKOVICH, Chief Judge, HOLMES and PHILLIPS, Circuit Judges. 

_________________________________ 

Donald E. Fymbo brought this 42 U.S.C. § 1983 action alleging violation of 

his constitutional rights in connection with the impoundment of several vehicles and 

his later state misdemeanor conviction for acting as an unlicensed motor vehicle 

 *

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

November 19, 2015

Elisabeth A. Shumaker 

Clerk of Court
2 

dealer, Colo. Rev. Stat. § 12-6-120(2). He now appeals from two orders of the 

district court that together disposed of all of his claims. We affirm. 

It is unnecessary to detail the events leading to this lawsuit since we dispose of 

it because of procedural omissions by Mr. Fymbo. We begin with the dismissal of all 

claims against the individual defendants due to Mr. Fymbo’s failure to prosecute, 

effect timely service, and comply with a court order. After expiration of the time for 

service on these defendants as directed by the magistrate judge pursuant to 

Fed. R. Civ. P. 4(m), the magistrate judge ordered Mr. Fymbo to show cause why his 

claims against them should not be dismissed. He did not respond, so the magistrate 

judge issued a recommendation that the complaint be dismissed without prejudice as 

to these defendants. Despite proper warning that the failure to file timely, specific 

objections would waive appellate review of the matter, R. at 101 n.3; see Duffield v. 

Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008), Mr. Fymbo did not object to the 

recommendation,1

 which the district court adopted. Mr. Fymbo has not advanced any 

grounds sufficient to warrant excusing our firm waiver rule under the “interests of 

justice” exception. See id. at 1237-38. His passing references to Klein v. Harper, 

777 F.3d 1144, 1147 (10th Cir. 2015), and Klein-Becker USA, LLC v. Englert, 

711 F.3d 1153, 1159 (10th Cir. 2013), are unavailing. The former, involving a 

litigant who had shown an “attentiveness to all other filings,” Klein, 777 F.3d 

 1

 On appeal Mr. Fymbo refers generally to his “Motion in Opposition to the 

Recommendations of United States Magistrate Judge and Motion for Summary 

Judgment,” R. at 103-08, but this filing dealt with other matters and did not address 

the dismissal of any of the defendants for failure to prosecute, effect service, or 

comply with court orders. 
3 

at 1147, is factually inapplicable, and the latter, discussing imposition of sanctions 

and having nothing to do with our firm waiver rule, see Englert, 711 F.3d at 1159, is 

simply not on point. Nor can we say that dismissal of his claims was “plain error” 

sufficient to excuse his waiver. See generally Duffield, 545 F.3d at 1238. His failure 

to effect timely service under Rule 4(m) according to the magistrate judge’s specific 

order (as well as his failure to respond to the ensuing order to show cause) facially 

warranted dismissal. Our enforcement of the firm waiver rule conclusively disposes 

of this aspect of the appeal. 

A similar sequence of orders, recommendation, and forgone objections led to 

the dismissal of Mr. Fymbo’s claims against the State of Colorado, Denver Auto 

Dealer Licensing Board (“SCDALB”) on the same grounds. Some additional 

clarification is needed in this regard, however. Mr. Fymbo did respond to the 

magistrate judge’s order to show cause with respect to SCDALB, contending that 

service on the Colorado Attorney General, who subsequently “enter[ed] his 

appearance in a limited capacity solely to monitor the proceedings,” R. at 27, “should 

[be] consider[ed] . . . service . . . perfected on the State of Colorado Auto License 

Dealer’s Board,” id. at 92. But while service on the Attorney General is a proper 

means of serving the State, see Colo. R. Civ. P. 4(e)(9), it does not suffice for entities 

associated with the State, see Colo. R. Civ. P. 4(e)(10).2

 Mr. Fymbo at times seems 

 2

 Under Fed. R. Civ. P. 4(j)(2), service on a state governmental organization 

may be done either by serving its chief executive officer or by accomplishing service 

“in the manner prescribed by that state’s law,” here Colo. R. Civ. P. 4(e)(10). 
4 

to suggest that the State of Colorado is a defendant, but he named SCDALB, not the 

State, as the defendant in his complaint (and naming the State of Colorado in a 

§ 1983 suit would be frivolous given its Eleventh Amendment immunity, McWilliams 

v. Colorado, 121 F.3d 573, 575 (10th Cir. 1997)). Mr. Fymbo failed to raise any 

objections to the magistrate judge’s recommendation that the claims against 

SCDALB be dismissed and hence our firm waiver rule disposes of this aspect of his 

appeal as well. 

The dismissal of Mr. Fymbo’s remaining claims, pursuant to the City and 

County of Denver’s motion under Fed. R. Civ. P. 12(b)(6), also implicates our firm 

waiver rule. The magistrate judge recommended granting the motion on the basis 

that Mr. Fymbo had failed to plead an actionable claim for municipal liability under 

Monell v. New York City Department of Social Services, 436 U.S. 658 (1978). 

Mr. Fymbo did address this recommendation in his “Motion in Opposition to the 

Recommendations of United States Magistrate Judge and Motion for Summary 

Judgement,” R. at 103-08, but he filed that motion outside the relevant fourteen-day 

period specified in 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b). As a result, the 

district court reviewed the recommendation solely for “clear error on the face of the 

record,” R. at 123, and, finding none, adopted the recommendation and granted the 

City and County of Denver’s motion to dismiss. As noted generally above, a party 

must file timely objections to avoid a waiver under our rule. Duffield, 545 F.3d at 

1237. A district court’s review of an untimely objection, even under a de novo 

standard, does not revive the waived right to appellate review. Vega v. Suthers, 
5 

195 F.3d 573, 579-80 (10th Cir. 1999). Mr. Fymbo seeks to excuse his untimeliness 

by stating that “[t]he 74 year old[] Appellant’s illness may well have been the cause 

of any nominal delay in responding.” Aplt. Reply Br. at 5. This vague, conclusory, 

and indeterminate statement does not remotely satisfy our interests-of-justice 

exception. Nor has Mr. Fymbo demonstrated plain error in the dismissal of his 

claims for failing to plead the elements of municipal liability with the factual 

specificity and plausibility required by Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

On appeal, he points to the involvement of city police officers in the investigation 

and seizure of the vehicles, and of the city attorney and county court judge in his 

criminal prosecution for the offense, but none of this demonstrates municipal 

liability, which cannot be based on mere vicarious liability. See Milligan-Hitt v. Bd. 

of Trs. of Sheridan Cty. Sch. Dist. No. 2, 523 F.3d 1219, 1223 (10th Cir. 2008). Once 

again, Mr. Fymbo’s appeal cannot survive our firm waiver rule. 

Two final matters may be disposed of in summary fashion. First, Mr. Fymbo 

now contends that both the magistrate judge and the district court judge should have 

recused themselves. We review this belatedly raised challenge for plain error, see

United States v. Mendoza, 468 F.3d 1256, 1262 (10th Cir. 2006), and readily 

conclude no such error is evident here. The mere fact that the magistrate judge 

presided over an unsuccessful action filed by Mr. Fymbo fifteen years ago does not 

raise any question about his qualification to hear another case involving Mr. Fymbo. 

The same is true of the district court judge, whose father presided over a number of 

unsuccessful actions brought by third parties who were assisted in some fashion by 
6 

Mr. Fymbo. Second, Mr. Fymbo has filed a “Motion for Default Judgement against 

the State of Colorado,” citing its failure to participate in this appeal. As already 

noted, the State of Colorado is not a party to these proceedings. 

The judgment of the district court is affirmed. Mr. Fymbo’s motion for default 

judgment is denied. 

Entered for the Court 

Timothy M. Tymkovich 

Chief Judge