                                                                         F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          OCT 23 2003
                         FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    CLARISSA WELLS,

             Plaintiff-Appellant,

    v.                                                 No. 02-1510
                                               (D.C. No. 01-RB-1989 (OES))
    JOHN D. DEAN; GREGORY C.                             (D. Colo.)
    SHEETS; UNITED STATES
    GOVERNMENT; FEDERAL
    PROTECTIVE SERVICE (8PAF);
    GENERAL SERVICES
    ADMINISTRATION; LTC
    CHARLES S. KELLAR;
    MAJ LOWELL C. PRESKITT:
    CPT STEVEN GARCIA; U.S. ARMY
    RECRUITING BATTALION
    DENVER; DEPARTMENT OF THE
    ARMY; SECRETARY TO THE
    ARMY; THOMAS E. WHITE; MEL
    CALDWELL; SHERMAN STREET
    PROPERTIES, INCORPORATION,

             Defendants-Appellees.


                          ORDER AND JUDGMENT            *




Before MURPHY and PORFILIO , Circuit Judges, and            BRORBY , Senior Circuit
Judge.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and 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.
      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.

      Plaintiff Clarissa Wells, proceeding pro se, appeals the district court’s

order dismissing her case in which she sought damages for injuries she sustained

while being improperly ejected from her place of employment with the federal

government. This court granted her request to proceed on appeal without

prepayment of costs and fees. We exercise jurisdiction under 28 U.S.C. § 1291,

and affirm.


                                 BACKGROUND

      Ms. Wells was a civilian employee of the Department of the Army. She

was assigned a work location in office space leased from defendant Sherman

Street Properties, Inc. (Sherman Street), and managed by defendant Caldwell. In

late September of 2000, defendant Kellar informed Ms. Wells that her

employment would be terminated on October 7, 2000. She immediately took

administrative leave until October 4, 2000, when she appeared at her office to

complete her notice period. Shortly after she arrived, she was asked to leave and


                                         -2-
when she refused, she was forcibly removed. She alleges that defendants Preskitt

and Garcia tried to intimidate and threaten her to get her to leave, but when that

did not work, they directed defendants Dean and Sheets to remove her. A

struggle ensued during which she alleges she was seriously injured. Defendant

Caldwell, the property manager, was present during the scuffle. Ms. Wells filed

suit based on this incident, claiming all defendants injured her and violated her

constitutional rights, and that they had conspired to do so.

      The case was referred to a magistrate judge, who recommended granting

the defendants’ motions to dismiss. The district court adopted the

recommendation and dismissed all claims with prejudice.

      All of the defendants, except Sherman Street and Caldwell, are employees,

officials or agencies of the United States government; they will be referred to as

the “federal defendants.” Sherman Street and Caldwell will be referred to by

name or as the “civilian defendants.”


                            PRELIMINARY MATTERS

                                     Jurisdiction

      We must first determine whether this court has jurisdiction over the appeal.

Ms. Wells did not file a notice of appeal within sixty days after the final order

was entered on November 29, 2002, as required by Rule 4(a)(1)(B) of the Federal

Rules of Appellate Procedure to invoke appellate jurisdiction. She did, however,

                                          -3-
file a motion to proceed in forma pauperis within the required time, which may

serve as the functional equivalent of a notice of appeal.   See Smith v. Barry ,

502 U.S. 244, 248-49 (1992) (holding an appellate brief filed within the allotted

time can be the functional equivalent of a notice of appeal). We construe

Ms. Wells’ motion to proceed in forma pauperis as a notice of appeal and exercise

jurisdiction over this appeal.   See Hoover v. United States , 268 F.2d 787, 789

(10th Cir. 1959) (construing timely-filed motion to proceed on appeal in forma

pauperis as notice of appeal);   see also Knox v. Wyoming , 959 F.2d 866, 868 n.1

(10th Cir. 1992) (restating rule from    Hoover ).

               Failure to Object to Magistrate Judge’s Recommendation

       Next we consider whether Ms. Wells waived her right to appeal the

judgment by failing to object to the magistrate judge’s recommendation, as

provided by 28 U.S.C. § 636(b)(1) and Rule 72 of the Federal Rules of Civil

Procedure. “Failure of a plaintiff to object to a magistrate judge’s

recommendations results in a waiver of appellate review. This remains true for

pro se litigants if the plaintiff was properly informed of the consequences of [her]

failure to object.”   Fottler v. United States , 73 F.3d 1064, 1065 (10th Cir. 1996)

(citation omitted). Here, however, it is not clear that Ms. Wells was informed that

failing to file objections would result in a waiver of appellate review. Although

the magistrate judge’s recommendation indicates that the necessary advisement


                                             -4-
was attached, the record contains no such advisement.       See Moore v. United

States , 950 F.2d 656, 659 (10th Cir. 1991) (“This notice should be included in the

text of the document containing the magistrate’s findings and

recommendations.”). Accordingly, because the record does not demonstrate that

Ms. Wells was properly informed of the consequences of her failure to object, we

decline to apply the “firm waiver rule,” and we proceed to the merits.    Cf. Theede

v. United States Dep’t of Labor     , 172 F.3d 1262, 1267-68 (10th Cir. 1999)

(applying “firm waiver rule”).


                                         MERITS

       Ms. Wells alleged the following claims for relief: (1) conspiracy to violate

her constitutional rights, (2) use of excessive and unreasonable force, (3) assault,

(4) battery, (5) outrageous conduct, and (6) negligence.

                                    Standard of Review

       The defendants’ motions to dismiss were based on Fed. R. Civ. P. 12(b)(1)

and (6), alleging lack of subject-matter jurisdiction and failure to state a claim

upon which relief can be granted.      “We review de novo the district court’s

dismissal for lack of subject-matter jurisdiction.” Owen v. Magaw, 122 F.3d

1350, 1352 (10th Cir. 1997). Our review of an order of dismissal for failure to

state a claim also is de novo. See Witt v. Roadway Express, 136 F.3d 1424, 1431

(10th Cir. 1998). Because plaintiff is representing herself on appeal, her

                                            -5-
pleadings will be liberally construed. Haines v. Kerner, 404 U.S. 519, 520

(1972).

                          Claims Against Federal Defendants

       The magistrate judge issued a careful and thorough recommendation for

dismissal, addressing each of Ms. Wells’ claims against the federal defendants,

and concluding that she was not entitled to relief on any of them.   We have

carefully reviewed the record on appeal, as well as the briefs submitted by the

parties. Applying the standards set out above, we affirm the dismissal of

Ms. Wells’ claims against the federal defendants for the same reasons stated by

the magistrate judge, and adopted by the district court.

                          Claims Against Civilian Defendants

       Ms. Wells alleged that Sherman Street and Caldwell were vicariously

responsible for the acts of the federal defendants because Sherman Street owned

and managed the real property where the incident occurred and Caldwell was

employed by Sherman Street. Ms. Wells also argued that Caldwell had a duty to

intervene in the incident.

       Ms. Wells did not oppose the motion to dismiss filed by Sherman Street and

Caldwell. Therefore, we deem her claims against Sherman Street and Caldwell

abandoned in the district court and we decline to consider them.     O’Connor v.

City & County of Denver , 894 F.2d 1210, 1214 (10th Cir. 1990). Even if we were


                                            -6-
to address them, however, we would hold that these non-governmental defendants

are not liable for federal civil rights violations.   See Sigmon v. CommunityCare

HMO, Inc. , 234 F.3d 1121, 1126 (10th Cir. 2000) (holding that allegation of state

action based on a conspiracy theory requires specific facts showing agreement and

concerted action by both public and private actors). As for her state-law claims,

Ms. Wells has not identified a recognized duty on the part of either of the civilian

defendants to intercede in the actions of the federal defendants.     Cf. Lego v.

Schmidt , 805 P.2d 1119, 1122 (Colo. Ct. App. 1990) (recognizing that

circumstances in which a failure to act leads to liability are limited). Moreover,

Ms. Wells’ allegations are insufficient for a claim of outrageous conduct.     See

Bohrer v. DeHart , 943 P.2d 1220, 1224 (Colo. Ct. App. 1996) (holding

outrageous conduct claim requires evidence that defendants’ actions were “so

outrageous in character and so extreme in degree as to go beyond all possible

bounds of decency and to be regarded as atrocious and utterly intolerable in a

civilized community,” and that defendants “intentionally caused severe emotional

distress”). We conclude that the district court properly granted Sherman Street

and Caldwell’s motion to dismiss with prejudice.




                                               -7-
                                 CONCLUSION

      Ms. Wells’ motion for a gag order and concealment of release of

information is denied. The judgment of the district court is AFFIRMED. The

mandate shall issue forthwith.



                                                 Entered for the Court



                                                 Wade Brorby
                                                 Senior Circuit Judge




                                       -8-
