                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            FEB 4 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    DOUGLAS EUGENE ROARK,

                Plaintiff-Appellant,

    v.                                                   No. 99-1140
                                                      (D.C. No. 98-Z-364)
    PAUL HOLLENBECK; BEN                                   (D. Colo.)
    GRIEGO,

                Defendants-Appellees.




                            ORDER AND JUDGMENT            *




Before EBEL , KELLY , and BRISCOE , 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 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      This order and judgment is not binding precedent, except under the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. 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.
        Plaintiff filed an action against defendants, pursuant to 42 U.S.C. § 1983,

alleging violation of his Eighth Amendment rights. Plaintiff complains that

defendants refused to take adequate precautions to ensure his safety while in

prison. The district court dismissed the complaint as failing to state a claim upon

which relief can be granted.    See Fed. R. Civ. P. 12(b)(6). Because the

sufficiency of a complaint is a question of law, we review the Rule 12(b)(6)

dismissal de novo . See GFF Corp. v. Associated Wholesale Grocers, Inc.,       130

F.3d 1381, 1384 (10th Cir. 1997). We affirm in part and reverse and remand in

part.

        Defendants argue that plaintiff has waived appellate review of his claims

under this court’s “firm waiver rule” because he failed to object to the magistrate

judge’s recommendation within ten days.        See Moore v. United States , 950 F.2d

656, 659 (10th Cir. 1991). The district court’s     de novo review of the magistrate’s

recommendation “does not, standing alone, preclude application of the waiver

rule.” Vega v. Suthers , 195 F.3d 573, 579-80 (10th Cir. 1999). We will not apply

the waiver rule, however, “where the interests of justice so require.”    Theede v.

United States Dep’t of Labor , 172 F.3d 1262, 1268 (10th Cir. 1999). We

conclude that the interests of justice require us to make an exception to the firm

waiver rule in this case. Two circumstances lead us to this conclusion. First, as

we hold below, one of plaintiff’s claim’s has merit.      See id. (considering whether


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plaintiff’s claims have merit in determining whether interests of justice dictate

making exception to firm waiver rule). Second, despite the fact that plaintiff filed

his specific objections a few days late, the district court expressly considered

them in reviewing, and ultimately adopting, the magistrate judge’s report and

recommendation.     Cf. United States v. 2121 E. 30th St.   , 73 F.3d 1057, 1060-61

(10th Cir. 1996) (finding that ends of justice did not require exception to waiver

rule because policies behind rule would not be advanced where objection to

magistrate’s report was not specific and so district court was not informed of

specific issues in its de novo review).

       Dismissal of a complaint under Rule 12(b)(6) is proper only when “it

appears beyond doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.”     Hall v. Bellmon , 935 F.2d 1106, 1109

(10th Cir. 1991) (quotation omitted). In reviewing the sufficiency of plaintiff’s

complaint, we take all factual allegations as true and construe them in the light

most favorable to plaintiff.   Id.

       Guided by these standards, we agree with the district court that plaintiff’s

complaint failed to state a claim upon which relief could be granted against

defendant Griego. The district court properly found that plaintiff’s claims against

Mr. Griego were based on a supervisor liability theory. To state such a claim,

plaintiff must establish an affirmative link between the alleged constitutional


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violation and Mr. Griego’s “personal participation, his exercise of control or

direction, or his failure to supervise.”    Green v. Branson , 108 F.3d 1296, 1302

(10th Cir. 1997) (quotation omitted);      see also Gagan v. Norton , 35 F.3d 1473,

1476 n.4 (10th Cir. 1994). Like the district court, we find nothing in the

complaint or amended complaint that would support such a conclusion. Dismissal

of the claims against Mr. Griego pursuant to Fed. R. Civ. P. 12(b)(6) was proper.

       We also agree with the district court that the letters attached to the

complaint indicate that plaintiff was transferred back to the Colorado prison

system at least partially at his own request, thereby negating any claim he might

urge against defendant Hollenbeck for exercising deliberate indifference in

bringing him back to the Colorado prison system. The fact and content of the

correspondence between plaintiff and Mr. Hollenbeck discussing the possible

transfer shows that, contrary to plaintiff’s assertions, Mr. Hollenbeck was

concerned with plaintiff’s well-being and that, far from being deliberately

indifferent to the situation, he was responsive to plaintiff’s concerns.

       We cannot say, however, that based on the allegations in the complaint and

amended complaint, plaintiff can prove no set of facts in support of his claim

against defendant Hollenbeck for deliberate indifference to plaintiff’s safety once

he was back in Colorado. When plaintiff was in Wyoming he had an alias, but

when he was transferred to Colorado, the alias was removed. Plaintiff


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encountered inmates in Colorado he had known in Wyoming, and plaintiff states

that he complained to Mr. Hollenbeck on several occasions that he feared for his

safety at the hands of those inmates. Plaintiff alleges that he received no

responses to his pleas and no precautions were taken for his safety. He

specifically alleges that when his case managers contacted Mr. Hollenbeck to

discuss concerns regarding plaintiff’s safety, Mr. Hollenbeck told the case

managers that he did not care what happened to plaintiff.       See District Court R.,

File #1, Amended Complaint at 3-E, 3-F. Plaintiff maintains that as a result of

Mr. Hollenbeck’s deliberate indifference to the substantial risk of harm posed by

other prisoners, he was assaulted and raped several times after his return to

Colorado. These allegations are sufficient to state a claim against Mr. Hollenbeck

for deliberate indifference to plaintiff’s safety once he was back in Colorado.    1



See Farmer v. Brennan , 511 U.S. 825, 833, 847 (1994) (affirming that prison

officials have duty to protect prisoners from violence by other prisoners and

holding that a prison official must know of, and fail to take reasonable measures

to abate, a substantial risk of serious harm).

       Accordingly, we AFFIRM the district court’s dismissal of plaintiff’s claims

against defendant Griego. We also AFFIRM the dismissal of claims against

defendant Hollenbeck relating to plaintiff’s transfer from the Wyoming prison


1
       We neither review nor comment on the merits of plaintiff’s claims.

                                            -5-
system. Finally, we REVERSE the Rule 12(b)(6) dismissal of plaintiff’s claims

that defendant Hollenbeck violated his constitutional rights by exhibiting

deliberate indifference to a substantial risk of harm once plaintiff was back in the

Colorado prison system. We REMAND this case to the district court for further

proceedings consistent with this opinion.



                                                     Entered for the Court



                                                     David M. Ebel
                                                     Circuit Judge




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