                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          DEC 18 2003

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk


 RONALD J. CESTNIK,

          Plaintiff-Appellant,

 v.                                                    No. 03-1124
                                              (D.C. No. 01-WM-1118 (BNB))
 FEDERAL BUREAU OF PRISONS,                             (Colorado)
 named as United States Bureau of
 Prisons,

          Defendant-Appellee.



                          ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


      The district court dismissed Ronald J. Cestnik’s medical malpractice claims

against the United States under the Federal Tort Claims Act (FTCA). 1 We affirm.

      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 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judgment is not binding precedent, except under the doctrines of law of the case,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, or 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.
      1
       Originally, Mr. Cestnik brought both negligence and medical malpractice
claims against the United States Bureau of Prisons. The Bureau brought a motion
                                                                   (continued...)
      The facts surrounding Mr. Cestnik’s claims were aptly laid out in the

magistrate judge’s recommendation and are excerpted here:

             The plaintiff is presently confined at FCI Englewood in
      Littleton, Colorado. . . . On or about the morning of April 22, 1998,
      the plaintiff slipped on ice while walking on a ramp to the recreation
      department. The ramp was not marked and was not cleared of ice. The
      plaintiff fell and injured his right knee. The plaintiff reported the fall
      to medical staff at FCI Englewood. The plaintiff was provided with
      medication and rehabilitation, but continued to suffer pain and
      dysfunction in the knee.
             The plaintiff filed an administrative tort claim, which was
      denied on December 14, 2000. Pursuant to 28 U.S.C. § 2401(b),
      the plaintiff filed this action within the requisite six months of the
      denial of his administrative tort claim.
             The plaintiff brings two claims under the [FTCA]. The
      claims allege (1) negligence in failing to obtain an MRI, failing
      to alleviate the plaintiff’s pain and suffering, and failing to correct
      the injury; and (2) negligence “for deliberate medical indifference
      that might have resulted in permanent and irreparable damage to
      the Plaintiff’s knee” and for withholding treatment to the knee.

Record at tab 42, pages 1-2.

      The government sought to dismiss Mr. Cestnik’s complaint on the basis of

his failure to file a certificate of review, required as a condition precedent to any

professional malpractice suit under Colorado law. See Colo. Rev. Stat. § 13-20-



      1
        (...continued)
to dismiss on the basis of Mr. Cestnik’s failure to file within the statute of
limitations. The magistrate judge recommended and the district court ordered
dismissal of some, but not all, of Mr. Cestnik’s claims on these grounds. The
only claims remaining after granting of the Bureau’s motion were those relating to
medical malpractice. As such, the Bureau moved to substitute the United States
as defendant, and the motion was granted.

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602. The magistrate judge granted Mr. Cestnik a three-month extension of time

to file the required certificate. Unable to retain a physician to perform the exam

necessary for a certificate, Mr. Cestnik moved for appointment of an expert

pursuant to Federal Rule of Evidence 706, which was denied. When Mr.

Cestnik’s extension of time expired, the government again moved for dismissal,

which the district court granted. Mr. Cestnik appeals both the denial of a court-

appointed expert and the dismissal of his claims.

      The government contends Mr. Cestnik’s failure to object formally within

ten days to the denial of an expert deprives us of jurisdiction to review the matter.

The government is correct that “[w]ithin 10 days after being served with a copy of

the magistrate judge’s order, a party may serve and file objections to the order,”

and that “a party may not thereafter assign as error a defect in the magistrate’s

order to which objection was not timely made.” F ED . R. C IV . P. 72(a). But we

have made an exception to this waiver rule for parties proceeding pro se who lack

specific notice of the consequences of failing to object:

      [i]n proceedings in which a party appears without benefit of counsel,
      we shall exercise our supervisory power and require magistrates
      within the circuit to inform a pro se litigant not only of the time
      period for filing objections, but also of the consequences of a failure
      to object . . . . This notice should be included in the text of the
      document containing the magistrates findings and recommendations.

Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). The order denying

Mr. Cestnik’s motion for appointment of an expert included no such warning, so

                                         -3-
he did not waive his objection and we have jurisdiction to consider it.

      A court’s authority to appoint an expert under Rule 706 is discretionary and

we may only overturn the denial of such a motion for abuse of discretion.

Duckett v. Mullin, 306 F.3d 982, 999 (10th Cir. 2002). Under this standard,

“a trial court’s decision will not be disturbed unless the appellate court has a

definite and firm conviction that the lower court made a clear error of judgment

or exceeded the bounds of permissible choice in the circumstances.” Moothart v.

Bell, 21 F.3d 1499, 1504 (10th Cir. 1994). Given the relative lack of complexity

of Mr. Cestnik’s case and his failure to submit any evidence that he was

financially unable to retain his own physician, we cannot say the refusal to

appoint an expert constituted abuse of discretion.

      Contending Colorado’s certificate of review requirement is inapplicable

and the government’s motion to dismiss was untimely filed, Mr. Cestnik seeks

reversal of the district court’s dismissal. Neither contention has merit.

      When a plaintiff brings suit against the United States under the FTCA, state

substantive law applies. See 28 U.S.C. § 1346(b)(1); Flynn v. United States, 902

F.2d 1524, 1527 (10th Cir. 1990). We have held Colorado’s requirement of this

certificate to be a substantive, rather than procedural, rule of law. Trierweiler v.

Croxton & Trench Holding Corp., 90 F.3d 1523, 1541 (10th Cir. 1996). As such,

it is applicable to Mr. Cestnik’s FTCA claims, even though he is proceeding pro


                                          -4-
se. Yadon v. Southward, 64 P.3d 909, 912 (Colo. Ct. App. 2003). Mr. Cestnik

concedes his complaint lacks the required certificate of review. Colorado law, as

applied to Mr. Cestnik’s claims through the FTCA, therefore requires dismissal of

his complaint. Teiken v. Reynolds, 904 P.2d 1387, 1389 (Colo. Ct. App. 1995).

      Mr. Cestnik asserts the government failed to timely move for dismissal

based on his failure to file a certificate of review. The government filed two

motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1). It

brought and the court granted the first because of Mr. Cestnik’s failure to file

some of his claims within the statute of limitations. When the government filed its

first motion to dismiss, however, the time for Mr. Cestnik to file his certificate of

review had not yet expired. Once that time had run, the government brought a

second motion. Mr. Cestnik’s insistence that the government should have brought

its motion to dismiss for failure to file a certificate of review along with the one

based on the statute of limitations is unwarranted. The government moved to

dismiss when the relevant situation arose, and the district court properly granted

the motion.

      We AFFIRM.

                                               ENTERED FOR THE COURT

                                               Stephanie K. Seymour
                                               Circuit Judge



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