                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                        June 5, 2007
                                    TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                        Clerk of Court

 JOHN RO UNDS,

          Plaintiff - Appellant,
                                                        No. 06-1322
 v.                                          (D.C. No. 04-CV-2532-W DM -M JW )
                                                          (D . Colo.)
 D EN N IS C OR BIN ; PA U L
 H O LLENBEC K; WILLIA M
 ZA LM A N,

          Defendants - Appellees.



                              OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges. **


      Plaintiff-Appellant John Rounds, a state inmate appearing pro se, appeals

from the district court’s dismissal of his action brought under 42 U.S.C. § 1983

against D ennis Corbin, Paul Hollenbeck, and W illiam Zalman (collectively

“D efendants”), all of w hom are Colorado prison officials. M r. Rounds’s



      *
        This order and judgment is not binding precedent, except under the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.
      **
         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.
complaint alleged violations of his Eighth Amendment right to be free from cruel

and unusual punishment and his First Amendment right to freedom of speech.

M ore specifically, he alleged that Defendants were deliberately indifferent to the

safety and well-being of the inmates at the Colorado Territorial Facility (the

facility at which M r. Rounds was housed) when they allowed electrical work at

the facility to be completed not up to code, without the necessary permits, and

without the supervision of a licensed electrician. He alleged that his First

Amendment rights w ere violated when he was transferred to another facility in

retaliation for complaining about the allegedly shoddy electrical work.

      On December 16, 2005, Defendants filed two motions to dismiss— one to

dismiss for failure to exhaust and one to dismiss on the merits. See R. Docs. 75,

76. The district court referred both motions to a magistrate judge for a

recommended disposition. See R. Doc. 77. On June 7, 2006, the magistrate judge

recommended that Defendants’ M otion to D ismiss for Failure to Exhaust

Administrative Remedies (R. Doc. 75) be granted in full under our since-defunct

total exhaustion rule, see Jones v. Bock, 127 S. Ct. 910, 925-26 (2007), and

recommended that, in the alternative, the Defendants’ M otion to Dismiss (R. Doc.

76) be granted in part and denied in part. See Rounds v. Corbin, 2006 W L

1832680, at *12 (D. Colo. June 30, 2006). Included within the magistrate judge’s

recommendations was a notice to M r. Rounds, written in bold-faced type, that he

had “ten (10) days after service of this recommendation to serve and file written,

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specific objections to the above recommendation with the District Judge assigned

to the case.” See R. Doc. 121 at 23. It also notified him that failure to file

detailed objections within ten days would result in his waiving “de novo review

of the recommendation by the District Judge” and “appellate review of both

factual and legal questions.” See id.

       M r. Rounds filed a motion for extension of time to file objections to the

magistrate’s report and recommendation on June 22, 2006, along with several

other motions. See R. Doc. 126, 123-125, 127. In it he claimed that he needed

more time because he is untrained at the law and had limited access to a law

library. R. Doc. 126 at 1. The district court denied M r. Rounds’s request for

additional time the next day, on June 23, 2006, because the case was set to go to

trial on July 10, 2006. See R. Doc. 129. Having not heard further from M r.

Rounds regarding the recommendations, the district court adopted it on June 30,

2006, thereby dismissing M r. Rounds’s complaint in full for failure to exhaust.

See Rounds, 2006 W L 1832680, at *12. Finally, on July 3, 2006, M r. Rounds

filed objections to the magistrate’s recommendations.

      M r. Rounds filed a notice of appeal on July 28, 2006. On August 3, 2006,

we ordered him to, within forty days, serve and file an opening brief on the merits

addressing: “W hether the plaintiff waived appellate review by failing to timely

file objections to the magistrate judge’s recommendation.” On September 11,

2006, M r. Rounds filed “Appellant’s Ordered Show Cause Brief,” in which he

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argues that he needed additional time to file his objections to the

recommendations because he is untrained in the law and had limited access to a

law library. He also argues that the district court abused its discretion in denying

his request for additional time to file objections. Our jurisdiction arises under 28

U.S.C. § 1291, and we affirm in part and reverse in part.

      “[W]e have adopted a firm waiver rule when a party fails to object to the

findings and recommendations of the magistrate.” M oore v. United States, 950

F.2d 656, 659 (10th Cir. 1991). The Supreme Court has sanctioned the adoption

of such a rule, see Thomas v. Arn, 474 U.S. 140, 155 (1985), and pursuant to it

“the failure to make timely objection to the magistrate’s findings or

recommendations waives appellate review of both factual and legal questions,”

M oore, 950 F.2d at 659. The firm waiver rule, however, does not apply (1) when

a pro se litigant was not notified of the time period for filing an objection and the

consequences for failing to do so, (2) when the interests of justice warrant, or (3)

when the party that failed to object makes a showing of plain error. See W ardell

v. Duncan, 470 F.3d 954, 958 (10th Cir. 2006); M orales-Fernandez v. INS, 418

F.3d 1116, 1119 (10th Cir. 2005); W irsching v. Colorado, 360 F.3d 1191, 1197

(10th Cir. 2004).

      M r. Rounds did not file timely objections to the magistrate judge’s

recommendations. W e find no abuse of discretion by the district court in denying

his motion for an extension of time to file such objections— the case was days

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away from trial and the recommendations could obviate the need for a trial.

M oreover, we note that M r. Rounds was able to file several other pleadings

contemporaneously with his motion for an extension of time. That leaves the

exceptions to the firm waiver rule.

      M r. Rounds was given proper notice by the magistrate judge regarding the

need to file objections so that exception does not apply. See R. Doc. 121 at 23.

M r. Rounds also has not persuaded us that the interests of justice require

consideration of the merits. The fact that he is not an attorney or lacks free

access to a law library does not prove sufficient on this record. M r. Rounds

admits that the law library was open two days a week and a review of the

objections he eventually filed (six days late and after the district court’s

consideration of the matter) reveals that only one prior precedent was relied upon

and that most of the objections presented were based on information readily

available to M r. Rounds even in the absence of a law library. See generally R.

Doc. 135; cf. M arsh v. Soares, 223 F.3d 1217, 1221 (10th Cir. 2000) (declining

equitable tolling based on lack of access to a law library because petitioner had

“not shown how this lack of access caused his delay in filing”).

      That leaves only the exception for plain error. Under plain error analysis,

M r. Rounds must establish (1) an error (2) that is plain (3) that affects his

substantial rights, and (4) that seriously affects the fairness, integrity, or public

reputation of judicial proceedings. See United States v. Olano, 507 U.S. 725,

                                          -5-
732-34 (1993); M orales-Fernandez, 418 F.3d at 1122-23. Having reviewed the

record, including M r. Rounds’s untimely objections to the magistrate’s

recommendation, we conclude that only one aspect of that resolution constitutes

error that is plain— reliance on the total exhaustion rule. See Johnson v. United

States, 520 U.S. 461, 468 (1997). However, this reliance prejudiced M r. Rounds

only on one claim— his First Amendment retaliation claim against Defendant

Corbin— because the magistrate apparently viewed that claim as exhausted, 1 but

nonetheless dismissed it pursuant to the now-defunct total exhaustion rule. The

remaining claims were dismissed pursuant to the Defendants’ motion and the

magistrate’s determination that they had not been properly exhausted, and that

conclusion does not constitute plain error. Because it appears that the claim

would not have been dismissed otherwise and it should be resolved in the first

instance at the district court, we will exercise our discretion to notice plain error

only with respect to M r. Rounds’s First Amendment retaliation claim against M r.

Corbin. Consequently, our firm waiver rule does not apply and we reverse the

district court’s dismissal of that claim on exhaustion grounds.

      In sum, we A FFIRM the district court’s dismissal with respect to M r.



      1
         See R. Doc. 75 at 8 (State Defendants’ M otion to Dismiss [for] Failure to
Exhaust Administrative Remedies) (“Frankly, the State D efendants are not sure
whether plaintiff filed a grievance and exhausted his administrative remedies
against defendant Corbin for his alleged conduct in claim two.”); Roberts v.
Barreras, __F.3d__, 2007 W L 1113956, at *4 (10th Cir. 2007) (explaining that
defendants have the burden of raising failure to exhaust).

                                         -6-
Rounds’s Eighth A mendment claim against all Defendants and his First

Amendment retaliation claim against M r. Hollenbeck and M r. Zalman. W e

REVERSE the district court’s dismissal with respect to M r. Rounds’s First

Amendment retaliation claim against M r. Corbin and REM AND for further

proceedings. W e GRANT IFP status and remind M r. Rounds of his obligation to

make partial payments until the filing fee is paid. Appellant’s “M otion for

Declatory [sic] Judgment” is denied.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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