                                                                                    FILED
                                                                        United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                            Tenth Circuit

                             FOR THE TENTH CIRCUIT                           September 20, 2018
                         _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
VICTOR ANDREW APODACA, SR.,

      Plaintiff - Appellant,

v.                                                            No. 18-2061
                                                   (D.C. No. 2:16-CV-00096-MV-LF)
CORIZON HEALTH CARE; JON                                       (D. N.M.)
WAILEX; LEVI H. JONES; GARY
BALINE, Administrator; DR.
BIRNBAUM; FNU SMITH, LCCF, GEO,
Warden; B. BURRIS; MRS. THOMAS,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BACHARACH, MURPHY, and MORITZ, Circuit Judges.
                 _________________________________

       After examining the parties= briefs and the 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.



       *
         After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
       Victor Andrew Apodaca, Sr., a New Mexico state prisoner proceeding pro se and

in forma pauperis,1 appeals from the district court=s grant of summary judgment in favor

of Dr. David Birnbaum on Apodaca=s 42 U.S.C. ' 1983 civil rights claim. Apodaca also

appeals from the district court=s denial of his Fed. R. Civ. P. 60(b) motion for relief from

judgment.2 Exercising jurisdiction pursuant to 28 U.S.C. ' 1291, we affirm the district

court=s judgment.

       Apodaca filed a complaint alleging, inter alia, that Birnbaum violated his Eighth

Amendment rights by failing to adequately care for Apodaca=s medical conditions. The

matter was referred to a magistrate judge for initial proceedings. See 28 U.S.C. '

636(b)(1)(B). The magistrate judge issued a thorough Report and Recommendation

cataloging Birnbaum=s (and his staff=s) responses to Apodaca=s various requests for

medical care. Based on that evidence, the magistrate judge concluded no reasonable jury

could conclude Birnbaum acted, or failed to act, despite knowledge of a substantial risk


       1
         This court GRANTS Apodaca=s motion to proceed on appeal in forma pauperis.
He is reminded, however, of his continuing obligation to make partial payments until the
entire filing fee has been paid in full.
       2
        Apodaca filed his notice of appeal before the district court issued its ruling on his
motion for relief from judgment. The notice of appeal became effective upon the district
court=s denial of Apodaca=s post-judgment motion. Fed. R. App. P. 4(a)(4)(B)(i). To
appeal the denial of the post-judgment motion, Apodaca needed to file either a new
appeal or an amended notice of appeal. Fed. R. App. P. 4(a)(4)(B)(ii). He did neither.
Within thirty days of the entry of the district court order denying the post-judgment
motion, however, Apodaca filed an entry of appearance and a motion to proceed in forma
pauperis. This court construes those filings as the functional equivalent of a notice of
appeal. Fleming v. Evans, 481 F.3d 1249, 1253-54 (10th Cir. 2007). Thus, this court has
jurisdiction to review the district court=s denial of Apodaca=s motion for relief from
judgment.

                                              2
of harm to Apodaca. See Garrett v. Stratman, 254 F.3d 946, 949 (10th Cir. 2001) (“A

prison official violates an inmate=s clearly established Eighth Amendment rights if he acts

with deliberate indifference to an inmate=s serious medical needsCif he knows of and

disregards an excessive risk to inmate health or safety.” (quotation omitted)).

Accordingly, the magistrate judge recommended that the district court grant summary

judgment in favor of Birnbaum.

       Despite being specifically warned in the Report and Recommendation that failure

to file objections with the district court would result in waiver of appellate review,

Apodaca did not file timely objections. Although he did file untimely objections, those

objections did not specifically address any of the magistrate judge=s conclusions. Instead,

the objections merely asserted that objection was made to preserve the right to further

review. But see United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10th

Cir. 1996) (AWe agree with the[] holdings of our sister circuits, because only an objection

that is sufficiently specific to focus the district court=s attention on the factual and legal

issues that are truly in dispute will advance the policies behind the Magistrate=s Act that

led us to adopt a waiver rule in the first instance. Therefore, we hold that a party=s

objections to the magistrate judge=s report and recommendation must be both timely and

specific to preserve an issue for de novo review by the district court or for appellate

review.@). The district court concluded Apodaca=s failure to file timely objections led to

the waiver of Apodaca=s right to appellate review of the Report and Recommendation.

See 28 U.S.C. ' 636(b)(1) (providing that a district court Ashall make a de novo

determination of those portions of the report or specified proposed findings or
                                               3
recommendations to which objection is made@). The district court further concluded that

the result would remain the same even if it considered Apodaca=s untimely objections

because those objections did not specifically identify any legal or factual errors on the

part of the magistrate judge. See One Parcel, 73 F.3d at 1060.

       Apodaca then filed a motion for relief from judgment, asserting his failure to file

timely objections was based on excusable neglect. See Fed. R. Civ. P. 60(b) (providing

that Athe court may relieve a party . . . from a final judgment, order, or proceeding for . . .

mistake, inadvertence, surprise or excusable neglect@). The district court denied

Apodaca=s motion, concluding Apodaca=s assertion that he did not understand applicable

procedures failed to demonstrate excusable neglect. See Zurich N. Am. v. Matrix Serv.,

Inc., 426 F.3d 1281, 1289 (10th Cir. 2005) (placing on the movant the high hurdle of

demonstrating excusable neglect). In any event, the district court concluded excusing

Apodaca=s failure to file timely objections would be of no meaningful benefit because the

objections Apodaca untimely filed failed to identify specific errors in the magistrate

judge=s Report and Recommendation.

       This court reviews the district court=s denial of Apodaca=s Rule 60(b) motion for

abuse of discretion. Switzer v. Coan, 261 F.3d 985, 988 (10th Cir. 2001). The district

court did not abuse its discretion in concluding Apodaca was not entitled to relief under

Rule 60(b). As noted by the district court, the magistrate judge=s Report and

Recommendation specifically informed Apodaca as to the steps he must take to preserve

de novo review. Given these specific directions, the district court reasonably concluded

Apodaca failed to satisfy the high hurdle of demonstrating his failure to file timely
                                               4
objections was excusable. Moreover, the district court reasonably concluded that

granting such relief to Apodaca would not be meaningful given that Apodaca never filed

the specific objections necessary to preserve de novo review.

       The conclusion the district court did not err in denying Apodaca=s Rule 60(b)

motion also resolves, in significant part, Apodaca=s appeal from the order of the district

court adopting the Report and Recommendation and granting summary judgment in favor

of Birnbaum. Because Apodaca failed to file timely and specific objections to the Report

and Recommendation, he has waived appellate review in this court. Talley v. Hesse, 91

F.3d 1411, 1412-13 (10th Cir. 1996) (“This circuit has adopted a firm waiver rule under

which a party who fails to make timely objection to the [magistrate judge’s] findings and

recommendations waives appellate review of both factual and legal questions.”). We

recognize we may Agrant relief from the firm waiver rule in the interests of justice,@ Klein

v. Harper, 777 F.3d 1144, 1147 (10th Cir. 2015), but Apodaca has not argued on appeal

that he is entitled to such relief. And, even if this court were inclined to examine the

availability of such relief sua sponte, the record firmly establishes that such relief is not

appropriate in this case. A[T]he interests of justice analysis . . . is similar to reviewing for

plain error.@ Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008). A plain-error

showing requires A(1) error, (2) that is plain, which (3) affects substantial rights, and

which (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.@ Id. (quotation omitted). A close examination of the record here

demonstrates absolutely no error on the part of the magistrate judge in concluding a

reasonable juror could not conclude Birnbaum knowingly or consciously disregarded a
                                               5
substantial risk to Apodaca=s health or safety. Instead, Birnbaum was responsive to

Apodaca=s medical needs and Apodaca=s complaints amount to nothing more than a

difference in opinion as to the most efficacious treatment. See Perkins v. Kan. Dept. of

Corr., 165 F.3d 803, 811 (10th Cir.1999) (A[A] prisoner who merely disagrees with a . . .

prescribed course of treatment does not state a constitutional violation.@).

       For those reasons set out above, the judgment of the United States District Court

for the District of New Mexico is hereby AFFIRMED.


                                              Entered for the Court


                                              Michael R. Murphy
                                              Circuit Judge




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