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

                                FOR THE TENTH CIRCUIT                       October 17, 2017

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
CHRISTOPHER JAMES CASTILLO,

       Plaintiff - Appellant,

v.                                                             No. 16-2235
                                                    (D.C. No. 1:14-CV-00407-MV-LF)
LAS CRUCES POLICE DEPARTMENT;                                   (D. N.M.)
CODY AUSTIN,

       Defendants - Appellees.


                                ORDER AND JUDGMENT*


Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.
                   _________________________________

       This is a pro se civil rights appeal. Plaintiff Christopher James Castillo is an

inmate at the Southern New Mexico Correctional Facility in Las Cruces, New Mexico.

In October 2013, Plaintiff pled guilty to aggravated battery with a deadly weapon after

attacking his mother with a baseball bat. In March 2014, Plaintiff filed an action under

the New Mexico Tort Claims Act in New Mexico state court, asserting that his conviction

for aggravated battery should be reversed, as well as claims for unreasonable search and


       *
         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 Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
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 This order and judgment is not binding precedent,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.
seizure, false arrest, and sexual abuse during a search incident to arrest. Defendants

removed the action to the U.S. District Court for the District of New Mexico. The court

construed Plaintiff’s allegations under the New Mexico Tort Claims Act as civil rights

claims under 42 U.S.C. § 1983.

       In 2015, all of Plaintiff’s claims were dismissed for failure to state a claim, with

the exception of the sexual assault claim against the arresting officer. At that time,

Plaintiff filed a premature notice of appeal that appeared to seek review of that order. We

issued an order to show cause as to why the appeal should not be dismissed for lack of

jurisdiction. Plaintiff submitted two letters but failed to address jurisdiction. We

ultimately dismissed the appeal for lack of prosecution. We advised Plaintiff that he

could file an appeal, if necessary, when the district court entered a final judgment

deciding all claims against all parties, in compliance with all applicable procedural rules.

       Following dismissal of Plaintiff’s appeal, Defendants were ordered by the district

court to file a report under Martinez v. Aaron, 570 F.2d 317, 318–19 (10th Cir. 1978).

Defendants filed the Martinez Report along with Motion for Summary Judgment based

on qualified immunity on December 18, 2015. Plaintiff filed his Response to the Motion

for Summary Judgment and Objections to the Martinez Report on February 29, 2016.

The parties filed several replies, supplements, and additional motions related to the

Motion for Summary Judgment and the Martinez Report. The magistrate judge also

directed Plaintiff to file a factual statement detailing the alleged physically and sexually

abusive conduct of the arresting officer. Plaintiff did not timely file the factual statement,

but did send the Court a letter inquiring as to the status of the case. In September 2016,

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the magistrate judge issued a Report and Recommendation (R&R), recommending that

the district court grant summary judgment in favor of Defendants. Plaintiff did not file an

objection to the R&R. The district court adopted the R&R, granted summary judgment in

Defendants’ favor, and dismissed the action with prejudice. Plaintiff timely appealed.1

       First, we must address the firm waiver rule. “This circuit has adopted a firm

waiver rule when a party fails to object to the findings and recommendations of the

magistrate judge.” Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010) (internal

quotation marks and brackets omitted). Under this rule, “the failure to make timely

objection waives appellate review of both factual and legal questions.” Id. (internal

quotation marks and ellipsis omitted). There are two exceptions to the firm waiver rule:

“when (1) a pro se litigant has not been informed of the time period for objecting and the

consequences of failing to object, or when (2) the ‘interests of justice’ require review.”

Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008).

       Plaintiff did not file an objection to the magistrate R&R, and the first exception to

the firm waiver rule does not apply: the magistrate judge’s R&R advised Plaintiff he

“must file any objections with the Clerk of the District Court within the fourteen-day

period. . . . If no objections are filed, no appellate review will be allowed.” (App. Vol. II

at 274.)

       We find, however, that Plaintiff has shown that the interests of justice require

review. “Among the factors this court has considered in determining whether to invoke

       1
         In the present appeal, Plaintiff has not challenged the June 2015 order. Thus, this
appeal is limited to the claim regarding the alleged sexual abuse during a search incident
to arrest.
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the interests-of-justice exception are [1] a pro se litigant's effort to comply, [2] the force

and plausibility of the explanation for his failure to comply, and [3] the importance of the

issues raised.” Casanova, 595 F.3d at 1123 (internal quotation marks and brackets

omitted). On October 17, 2016, we issued an order to show cause why Plaintiff’s right to

appeal has not been waived by his failure to timely file objections to the R&R. Plaintiff

filed a response, asserting that he wrote objections, but that the prison staff tampered with

and refused to mail the objections.

       There is some reason to doubt Plaintiff’s claim of mail tampering. Certainly,

nothing has prevented Plaintiff from filing numerous documents in the district court and

on appeal. And we have in the past rejected the same argument Plaintiff makes here.

See, e.g., Nasious v. Robinson, 396 F. App’x 526, 529 (10th Cir. 2010) (“[Plaintiff]

makes a vague and conclusory allegation that the mail room staff somehow lost or

tampered with his mail, but those allegations are completely unsupported by any factual

evidence or proof. Given the volume of the other pleadings which traveled successfully

between [Plaintiff] and the courts, there appears to be no serious or consistent problem

with the mail services within the prison.”) Indeed, Plaintiff was able to file a letter with

the district court about a month prior to the R&R, and several days after the district court

adopted the R&R he filed a motion to extend the time to file a notice of appeal.

Additionally, he has filed several documents on appeal. However, this is not the first

time Plaintiff has alleged mail tampering. (See, e.g., App. Vol. II at 267.) In addition,

this case raises issues of fundamental and constitutional rights. Therefore, we will give

Plaintiff the benefit of the doubt, and we will decide the appeal on the merits.

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       Turning to the merits, “[w]e review a grant of summary judgment de novo.”

Hansen v. SkyWest Airlines, 844 F.3d 914, 922 (10th Cir. 2016). “We will affirm the

district court's disposition only if our independent review of the record, viewing the facts

in the light most favorable to the nonmoving party, reveals that there is no genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of

law.” Id. We have reviewed the briefs and the record, and we have given Plaintiff’s

allegations due consideration. We see no error. The magistrate judge thoroughly

evaluated the case, and district court properly granted summary judgment. Nor do we

have much to add. Based on the sworn statements in Plaintiff’s complaint, the court held

that “[n]othing about the pat-down . . . was extreme or patently abusive” and,

accordingly, that the search incident to arrest was reasonable. (App. Vol. II at 273.)

       Insofar as Plaintiff raises new claims and factual arguments on appeal, we

generally “do not permit new arguments on appeal when those arguments are directed to

reversing the district court.” United States v. Holmes, 727 F.3d 1230, 1237 (10th Cir.

2013). Finally, we pause to note for Plaintiff’s benefit, as the magistrate judge did, that a

civil rights action under § 1983 is not the proper vehicle for challenging a criminal

conviction and, further, that an unlawful arrest, “without more, has never been viewed as

a bar to subsequent prosecution, nor as a defense to a valid conviction.” United States v.

Crews, 445 U.S. 463, 474 (1980).

       We AFFIRM the district court’s order granting summary judgment. In light of

the district court’s order granting petitioner leave to proceed on appeal without

prepayment of fees, the two pending motions are denied as MOOT; however, appellant

                                            -5-
is reminded of his obligation to continue making partial payments until the fee is paid in

full.

                                                 Entered for the Court



                                                 Monroe G. Mckay
                                                 Circuit Judge




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