Snyder v. Snyder

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 11 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk

GARY L. SNYDER, D.P.M.,

Plaintiff-Appellant,

v.
No. 97-1081
JANICE J. SNYDER; JANE E. (D.C. No. 94-B-2194)
KARDOKUS, Attorney; PATRICK (D. Colo.)
OWEN, Attorney; THOMAS LEVI,
Judge; individually; JAMES F.
MACRUM, Judge, individually;
MICHAEL L. BEIDA, Judge,
individually; JOHN P. LEOPOLD,
Judge, individually; ROBERT R.
GALLAGHER, JR., District Attorney,
individually; and PAULA J. SMITH,
Deputy District Attorney, individually,

Defendants-Appellees.

GANNET COLORADO
BROADCASTING, INC., also known as
Gannet Broadcasting, Inc., a Colorado
corporation; PAULA WOODWARD;
and WARD LUCAS,

Defendants.

GARY L. SNYDER, D.P.M.,

Plaintiff-Appellant,
No. 97-1192
v. (D.C. No. 94-B-2194)
(D. Colo.)
 THOMAS LEVI, Judge; individually;
JAMES F. MACRUM, Judge,
individually; MICHAEL L. BEIDA,
Judge, individually; JOHN P.
LEOPOLD, Judge, individually;

Defendants-Appellees.

JANICE J. SNYDER; JANE E.
KARDOKUS, Attorney; PATRICK
OWEN, Attorney; ROBERT R.
GALLAGHER, JR., District Attorney,
individually; and PAULA J. SMITH,
Deputy District Attorney, individually,
GANNET COLORADO
BROADCASTING, INC., also known
as Gannet Broadcasting, Inc., a
Colorado corporation; PAULA
WOODWARD; and WARD LUCAS,

Defendants.

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and BRISCOE, Circuit Judges.

*
This order and judgment is not binding precedent, except under the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 and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The cases are therefore

ordered submitted without oral argument.

No. 97-1081

In No. 97-1081, plaintiff appeals the district court’s order of February 12,

1997, adopting the report and recommendation of the magistrate judge to dismiss

his case and enter sanctions against plaintiff. Plaintiff, proceeding pro se, filed

suit under 42 U.S.C. §§ 1981 and 1983 against five state court judges, a district

attorney and an assistant district attorney, plaintiff’s ex-wife and her two

attorneys, and two television news reporters and their employer, alleging

defendants had violated his constitutional rights. Generally, plaintiff’s

allegations arose out of acrimonious divorce proceedings, and related garnishment

and contempt proceedings, in state court. The allegations against the media

defendants arose out of a story on “Runaway Fathers” that aired on a local

television channel. All of the defendants, with the exception of the media

defendants, who apparently were never served, filed motions to dismiss. The

judicial defendants, as well as plaintiff’s ex-wife and her attorneys, also sought

sanctions against plaintiff under Fed. R. Civ. P. 11. The district court referred the

various motions to the magistrate judge for recommendation.

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 The magistrate judge issued a lengthy report in which he recommended that

the claims against the state court judges be dismissed on the grounds of absolute

immunity. The magistrate judge also recommended, as a sanction against plaintiff

under Rule 11, that the judges be awarded their costs and attorney fees for

defending against plaintiff’s frivolous claims. The magistrate judge concluded

that plaintiff’s claims against the district attorney and the assistant district

attorney also should be dismissed, because plaintiff had made no allegations of

personal involvement on the part of the district attorney and his allegations

against the assistant district attorney related to actions she took in her

prosecutorial capacity while pursuing contempt charges against plaintiff for

failing to pay child support. The magistrate judge recommended dismissing

plaintiff’s claims against his ex-wife and her attorneys because they were not

state actors, and plaintiff’s allegations that they conspired with state actors were

too conclusory to show state action on the part of the private individuals. Further,

because plaintiff’s federal claims against these private defendants were frivolous,

the magistrate judge recommended that their request for Rule 11 sanctions against

plaintiff be granted.

The final paragraph of the report and recommendation provided as follows:

It is ORDERED that, pursuant to Fed. R. Civ. P. 72(b), any
party objecting to the Recommendation in this matter shall, within
ten days after service of this Recommendation, serve and file any
written objections in order to obtain reconsideration by the District

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 Judge to whom this case is assigned. Any objections must
specifically identify those findings and recommendations to which
the objections are being made. Failure to file a timely written
objection will bar the parties from a de novo determination or appeal
of the findings of fact, conclusions of law, and recommendations
herein by the District Court Judge.

R. Vol. I, Doc. 31 at 15. The magistrate judge served the report and

recommendation on the parties by mail on Thursday, January 23, 1997.

Therefore, plaintiff’s objections had to be filed with the district court by Monday,

February 10. See, e.g., Lerro v. Quaker Oats Co., 84 F.3d 239, 241-42 (7th Cir.

1996) (discussing the computation of time for filing objections to a magistrate

judge’s report).

On Wednesday, February 12, the district court entered its order adopting

the magistrate judge’s report and recommendation. The court recited in its order

that it had not conducted a de novo review of the magistrate judge’s report and

recommendation because “[t]he plaintiff has failed to file specific written

objections to the recommendation.” R. Vol. I, Doc. 32 at 1. The court ordered

that all of plaintiff’s claims be dismissed. The court also granted the motion for

attorney fees and costs of the judicial defendants, and directed them to file their

affidavits and billing statements in support within ten days. Likewise, the court

granted the motion of the private individuals for Rule 11 sanctions, and directed

them to file their affidavits and billing statements in support within ten days. A

week later, on Wednesday, February 19, the district court received, but did not

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docket, plaintiff’s objections to the magistrate judge’s report. Plaintiff filed his

notice of appeal from the district court’s order on Tuesday, February 25.

At the outset, we must determine whether plaintiff has waived appellate

review. “This circuit has adopted a firm waiver rule under which a party who

fails to make timely objection to the magistrate’s findings and recommendations

waives appellate review of both factual and legal questions.” Talley v. Hesse, 91

F.3d 1411, 1412 (10th Cir. 1996). The waiver rule applies to a pro se litigant, so

long as he “was properly informed of the consequences of his failure to object.”

Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996). Here, the

magistrate judge properly informed plaintiff that he had to file specific written

objections within ten days, and that his failure to do so would bar him from

appealing the district court’s findings of fact and conclusions of law. Therefore,

unless plaintiff’s objections were timely filed, he has waived appellate review of

the district court’s February 12 order.

On appeal, plaintiff contends that his objections were timely filed. Plaintiff

states that he finished drafting the objections on Thursday, February 6, and mailed

copies to the federal district court, in Denver, and to opposing counsel, on Friday,

February 7. We note that the certificate of service on the objections contains a

date of February 16, but plaintiff insists this is merely a typographical error and

that the date should be February 6. The copy of the objections contained in the

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record on appeal bears two stamps, which reflect the objections were both

“received”and “filed” by the district court clerk’s office on February 19. R.

Suppl. Vol. I, Doc. 39 at 1. The clerk, however, did not make an entry on the

docket concerning the objections until March 19, at which time the objections

were docketed as having been filed on February 19. See R. Suppl. Vol. II,

District Court Docket Sheet.

Plaintiff does not dispute that the district court clerk did not receive his

objections until February 19, but he contends that they should be deemed timely

filed because he mailed them before February 10. Mailing, however, does not

constitute “filing” under the Federal Rules of Civil Procedure. Compare Fed. R.

Civ. P. Rule 5(e) (“The filing of papers with the court as required by these rules

shall be made by filing them with the clerk of the court . . . ”) with Fed. R. Civ. P.

5(b) (providing that service on a party, when made by mail, “is complete upon

mailing”). “The rules contemplate that filing with a district clerk can only be

accomplished by proof of the physical delivery of the document. Normally, this is

acknowledged by the affixing of the clerk’s file stamp thereon.” United States v.

Doyle, 854 F.2d 771, 773 (5th Cir. 1988); see also Chrysler Motors Corp. v.

Schneiderman, 940 F.2d 911, 914 (3d Cir. 1991) (“A mailing in itself is not a

filing.”); Vogelsang v. Patterson Dental Co., 904 F.2d 427, 430 (8th Cir. 1990)

(holding that pleading “must be received by the district court to be considered

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filed”); Haney v. Mizell Mem’l Hosp., 744 F.2d 1467, 1472 (11th Cir. 1984)

(holding that deposit of pleading in mail does not constitute filing).

The Supreme Court has recognized an exception to this general rule only

for pro se litigants who are incarcerated. See Houston v. Lack, 487 U.S. 266,

270-76 (1988). Noting that “a large body of lower court authority” has held that

actual receipt by the district court is necessary to constitute filing, id. at 274, the

Court concluded that an exception should be made to this general rule for pro se

prisoners, because they cannot monitor the receipt and filing of their pleadings by

the clerk in the same fashion as other litigants, id. at 270-71.

Unlike other litigants, pro se prisoners cannot personally travel to the
courthouse to see that the notice is stamped “filed” or to establish the
date on which the court received the notice. Other litigants may
choose to entrust their appeals to the vagaries of the mail and the
clerk’s process for stamping incoming papers, but only the pro se
prisoner is forced to do so by his situation. And if other litigants do
choose to use the mail, they can at least place the notice directly into
the hands of the United States Postal Service (or a private express
carrier); and they can follow its progress by calling the court to
determine whether the notice has been received and stamped,
knowing that if the mail goes awry they can personally deliver notice
at the last moment or that their monitoring will provide them with
evidence to demonstrate either excusable neglect or that the notice
was not stamped on the date the court received it.

Id. at 271.

Plaintiff, however, is not incarcerated. Plaintiff lives in the Denver metro

area, and he had several methods by which he could have ensured that the court

received and filed his objections on Monday, February 10. Having chosen to send

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the objections by mail, plaintiff “assumed the risk of an untimely delivery and

filing of [his objections.]” Bad Bubba Racing Prods., Inc. v. Huenefeld (In re

Bad Bubba Racing Prods., Inc.), 609 F.2d 815, 816 (5th Cir. 1980) (quotation

omitted).

Although we have recognized an exception to our general waiver rule

“when the interests of justice so dictate,” Moore v. United States, 950 F.2d 656,

659 (10th Cir. 1991), the record before us does not reflect that such an exception

is warranted here. Although plaintiff’s objections were due on Monday, February

10, he chose to put them in the mail on Friday, February 7, rather than use some

other form of delivery more likely to insure their timely receipt by the district

court. Further, upon receipt of the district court’s February 12 order, which

recited that plaintiff had not filed written objections to the magistrate judge’s

report, plaintiff made no attempt to draw the court’s attention to the fact that he

had filed objections or to ask the court to reconsider its order in light of his

objections. See, e.g., Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).

Instead, plaintiff simply filed his notice of appeal from the district court’s order.

Finally, our review of the parties’ briefs does not indicate that a review of

plaintiff’s claims on the merits is necessary to avoid manifest injustice.

Therefore, we conclude that plaintiff has waived appellate review of the district

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court’s order of February 12, by failing to file timely written objections to the

magistrate judge’s report and recommendation.

No. 97-1192

In No. 97-1192, plaintiff appeals the district court’s order of April 29,

1997, which set the amount of attorney fees and costs plaintiff owed the judicial

defendants as a sanction under Rule 11. In accordance with the court’s February

12 order, counsel for the judicial defendants filed her affidavit of fees and costs,

with supporting documentation, on February 24, 1997. Counsel sought attorney

fees in the amount of $4,302.50 and costs in the amount of $101.25. See Suppl.

R. Vol. II, Doc. 33 at 4. Plaintiff filed no objection to counsel’s affidavit, and the

district court determined that the fees and costs sought were reasonable and

proper. Therefore, the district court ordered that judgment be entered in favor of

the judicial defendants in the amount of $4,403.75. On April 30, the clerk

accordingly entered judgment against plaintiff in the amount of $4,403.75, “plus

interest from date of entry of judgment at the legal rate of 6.06%.” Id., Doc. 42 at

1.

Plaintiff raises three arguments on appeal: (1) the district court erred in

assessing any attorney fees and costs against him; (2) the amount of fees and costs

awarded was not reasonable; and (3) the clerk erred in adding interest to the

judgment, because the district court’s order did not mention interest. As we

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discussed above, plaintiff has waived appellate review of the district court’s

February 12 order. Because that order contained the actual grant of fees and costs

to defendants, we will not consider plaintiff’s challenges to the grant of fees and

costs on appeal. Nor will we consider plaintiff’s challenges to the amount of fees

and costs awarded, because plaintiff made no objection to the amount of fees or

costs in the district court. See, e.g., Walker v. Mathers (In re Walker), 959 F.2d

894, 896 (10th Cir. 1992) (noting general rule that we will not consider an

argument raised for first time on appeal).

We turn, then, to plaintiff’s final argument: that the clerk erred in adding

interest to the judgment for attorney fees and costs. By federal statute, “[i]nterest

shall be allowed on any money judgment in a civil case recovered in a district

court.” 28 U.S.C. § 1961. We have held that the mandate of § 1961 applies both

to judgments for attorney fees, see Transpower Constructors v. Grand River Dam

Auth., 905 F.2d 1413, 1423-34 (10th Cir. 1990), and to judgments for costs, see

Wheeler v. John Deere Co., 986 F.2d 413, 415 (10th Cir. 1993). Therefore, the

clerk of the district court properly included interest at the statutory rate on the

judgment for attorney fees and costs.

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 Plaintiff having waived appellate review in No. 97-1081, the appeal is

DISMISSED. The judgment of the district court in No. 97-1192 is AFFIRMED.

Entered for the Court

Wade Brorby
Circuit Judge

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