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

                         FOR THE TENTH CIRCUIT                        May 6, 2020
                       _________________________________
                                                                  Christopher M. Wolpert
                                                                      Clerk of Court
    SHAWN RICHARD ROBERTS,

          Plaintiff - Appellant,

    v.                                                 No. 20-1001
                                           (D.C. No. 1:19-CV-02465-LTB-GPG)
    WELL PATH; MESA COUNTY                              (D. Colo.)
    SHERIFF’S DEPARTMENT,

          Defendants - Appellees.
                      _________________________________

                          ORDER AND JUDGMENT *
                       _________________________________

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

         This appeal involves an alleged failure to provide medical care to

Mr. Shawn Richard Roberts, a pretrial detainee. Seeking redress, Mr.

Roberts filed a pro se 42 U.S.C. § 1983 action against the county sheriff’s

department and the private company that provided medical care to

detainees (Well Path).


*
      Oral argument would not materially help us to decide this appeal, so
we have thus decided the appeal based on the appellate briefs and the
record on appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
      A magistrate judge recommended summary dismissal of the

complaint as frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). After Mr.

Roberts failed to object, the district judge adopted the recommendation,

dismissed the action, and denied leave to proceed in forma pauperis.

      Mr. Roberts appeals, seeks leave to proceed in forma pauperis in this

appeal, and moves for appointment of counsel. We grant Mr. Roberts’s

request to proceed in forma pauperis, but we deny his motion to appoint

counsel and affirm the dismissal.

1.    Mr. Roberts alleges a failure to provide medical care at the
      detention facility.

      In the second amended complaint, Mr. Roberts alleged that officials

had failed to provide him with (1) medication for back pain, (2) medication

for bipolar disorder, (3) a cane, and (4) a medical mattress. According to

Mr. Roberts, these failures caused him severe pain, anxiety, and physical

injury. He sought damages and an order requiring proper medication, a

cane, and an adequate mattress.

2.    The district court dismisses the action as frivolous.

      A magistrate judge recommended dismissal for three reasons: (1) Mr.

Roberts had failed to allege specific facts constituting deliberate

indifference to his serious medical needs; (2) the Mesa County Sheriff’s

Department is not a “person” subject to § 1983; and (3) Mr. Roberts had




                                      2
failed to connect his injuries to an official policy or custom of Mesa

County or Well Path.

      The magistrate judge informed Mr. Roberts that (1) he could request

further review by objecting within fourteen days and (2) failure to timely

object could bar an appeal. Mr. Roberts did not object, and the district

judge adopted the magistrate judge’s recommendation for dismissal.

3.    We decline to apply the firm waiver rule.

      After Mr. Roberts appealed, the court required him to show cause

why his failure to timely object to the magistrate judge’s recommendation

wouldn’t waive the right to appellate review. Mr. Roberts has satisfied this

requirement.

      If a party fails to timely object to a magistrate judge’s

recommendations, the party generally waives the right to appellate review.

Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005). Two

exceptions exist. The first is when a pro se party has not been informed of

the period for objections and the consequences of failing to object. Id. The

second exception is when appellate review is required in the “interests of

justice.” See id.

      Mr. Roberts responded to the show cause order, stating that he had

not received the magistrate judge’s report and recommendation. Given Mr.

Roberts’s lack of notice, we conclude that the second exception applies.

We thus do not consider Mr. Roberts’s arguments waived.

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4.    We deny Mr. Roberts’s motion to appoint counsel.

      Mr. Roberts has moved for appointment of counsel in the appeal.

Although we cannot appoint counsel in civil cases, we can request an

attorney for Mr. Roberts. 1 See 28 U.S.C. § 1915(e)(1); Rachel v. Troutt,

820 F.3d 390, 396 (10th Cir. 2016). When deciding whether to request

counsel, we consider the merits of the claims, the nature of the claims, Mr.

Roberts’s ability to present the claims, and the complexity of the issues.

See Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995). In Mr.

Roberts’s case, these factors lead us to conclude that a request for counsel

is not warranted. We thus deny Mr. Roberts’s motion to appoint counsel.

5.    Because Mr. Roberts does not challenge two of the grounds for
      dismissal, we affirm.

      On appeal, Mr. Roberts contends that the failure to provide

medications caused months of pain and suffering. This argument addresses

the first reason for the dismissal (failure to allege deliberate indifference

to a serious medical need). But Mr. Roberts does not challenge the other

two reasons for the dismissal: (1) that the sheriff’s department is not a

“person” under 42 U.S.C.§ 1983 and (2) that Mr. Roberts has failed to tie




1
      In the motion, Mr. Roberts used a form seeking volunteer counsel
under a program administered by the district court. D.C. Colo. L. Atty. R.
15(a). This program applies to proceedings in district court, not our court.

                                       4
his injuries to a policy or custom of Mesa County or Well Path. 2 So we

would need to affirm even if we credited Mr. Roberts’s appellate argument

in its entirety. See Lebahn v. Nat’l Farmers Union Pension Plan, 828 F.3d

1180, 1188 (10th Cir. 2016) (stating that we must affirm when an appellant

fails to challenge one of two independent grounds for dismissal). Given the

failure to challenge two of the reasons for dismissal, we affirm. 3

                                     Entered for the Court



                                     Robert E. Bacharach
                                     Circuit Judge




2     We liberally construe pro se filings. See Childs v. Miller, 713 F.3d
1262, 1264 (10th Cir. 2013). But we “will not supply additional factual
allegations . . . or construct a legal theory” on a pro se litigant’s behalf.
Smith v. United States, 561 F.3d 1090, 1096 (10th Cir. 2009) (quoting
Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997)).
3
     We grant Mr. Roberts’s motion for leave to proceed in forma
pauperis and remind him of his obligation to continue making partial
payments until the entire appellate filing fee is paid.

                                       5
