F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 10, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
EN CISO RO DRIGO ACEVES,
Plaintiff-Appellant, No. 06-2017
v. (D. of N.M .)
GARLAND JEFFERS and R. (D.C. No. CV-03-365-JB)
RO DR IGU EZ,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before HA RTZ, EBEL, and T YM KOVICH, 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. W e further deny
Aceves’ motion to proceed in forma pauperis.
*
This order is not binding precedent, except under the doctrines of law of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.
I. Background
Enrico Rodrigo Aceves served 77 months at the Cibola County Correctional
Center (“CCCC”) 1 in M ilan, New M exico for illegal reentry. During his
incarceration, he alleges that prison officials violated his constitutional rights in
the following manner: (1) imposing involuntary servitude by forcing him to w ork
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 w ith 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 M exico. 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
W e 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
1
CCCC, pursuant to a contract with the Federal Bureau of Prisons, houses
low -security criminal alien federal inmates.
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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 M exico. 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.
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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 A mendment for involuntary servitude w here he is required to w ork
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. W e further deny Aceves’ motion to proceed in form a pauperis.
Entered for the court
Timothy M . Tymkovich
Circuit Judge
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