                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                           August 7, 2007
                                  TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                            Clerk of Court


 H A RRY LEE M A D D O X,

               Plaintiff-Appellant,                         No. 07-6088
          v.                                              (W .D. Oklahoma)
 ALBERT J. HOCH, JR., Court                               (CIV-07-119-M )
 Appointed Attorney; RA NDY EV ERS,

               Defendants-Appellees.


                             OR DER AND JUDGM ENT *


Before H E N RY, T YM KOV IC H, and HO LM ES, Circuit Judges.


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

unanimously that oral argument would not materially assist the determination of

this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Harry M addox, a state prisoner proceeding pro se, filed this 42 U.S.C. §

1983 action seeking damages and a reduced sentence. He also seeks to proceed in

forma pauperis (“IFP”). M r. M addox argued that his appointed attorneys, acting


      *
         This order and judgment is not binding precedent except under the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.
under the color of state law, provided ineffective assistance of counsel. The

magistrate judge recommended a sua sponte dismissal of the case, because the

appointed defense attorneys were not acting under the color of state law. The

magistrate judge also observed that M r. M addox did not allege that his counsel

willfully participated in a joint action with the State or its agents in violating his

constitutional rights. M r. M addox did not object to the recommended dismissal,

and the district court summarily adopted the recommendation and dismissed the

claim. M r. M addox appeals, and we affirm.

                                   I. DISCUSSION

      A. W aiver of appellate review

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

findings and recommendations of the magistrate [judge].” M oore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991). Under our “firm waiver rule,” a party

who fails to file timely objections to a magistrate judge’s report and

recommendation waives appellate review. Wirsching v. Colorado, 360 F.3d 1191,

1197 (10th Cir. 2004) (internal quotation marks omitted).

      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 Wardell v. Duncan, 470

F.3d 954, 958 (10th Cir. 2006); M orales-Fernandez v. INS, 418 F.3d 1116, 1119

                                           -2-
(10th Cir. 2005); Wirsching, 360 F.3d at 1197. M r. M addox maintains that he did

not receive notification of the Report and Recommendation, and he attached a

document that he maintains is the Oklahoma State Reformatory mail log for the

months of M arch and April 2007, which indicates the only correspondence he

received from the district court was the order dismissing his complaint. Because

M r. M addox makes a colorable claim that he did not receive notice of the time

period for filing an objection, we will address the merits.

      B. M erits

      W e review de novo a district court’s sua sponte dismissal of a complaint

for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Perkins v. Kan.

Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999). W e agree with the magistrate

judge’s conclusion that “[i]t is well-established that a public defender does not act

on behalf of the state w hen defending a criminal prosecution.” Rec. doc. 7, at 3

(M agis. Judge’s Report and Rec. M arch 8, 2007) (citing Polk County v. Dodson,

454 U.S. 312, 325 (1981)). For substantially the same reasons as provided by the

magistrate judge, we affirm the district court’s dismissal of M r. M addox’s § 1983

complaint on the grounds that his appointed counsel was not a state actor. See 28

U.S.C. § 1915(e)(2)(B)(ii).




                                         -3-
                               III. CONCLUSION

      Accordingly, we A FFIRM the district court’s dismissal of M r. M addox’s

complaint, and we DEN Y his motion to proceed IFP.



                               Entered for the Court,


                               ROBERT H. HENRY
                               Circuit Judge




                                       -4-
