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

                           FOR THE TENTH CIRCUIT                         May 21, 2013

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
DALE P. ARMELIN,

             Plaintiff–Appellant,

v.                                                        No. 12-1483
                                             (D.C. No. 1:11-CV-02823-CMA-KMT)
PATRICK R. DONAHOE, Postmaster                             (D. Colo.)
General; UNITED STATES POSTAL
SERVICE,

             Defendants–Appellees.


                            ORDER AND JUDGMENT*


Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges.


      Dale Armelin appeals from the district court’s dismissal of his complaint as

untimely filed. We dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B)(i) as

frivolous.




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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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

      Armelin filed suit against his former employer, the United States Postal

Service, alleging race and color discrimination, and retaliation during his

employment. Defendants moved to dismiss the complaint for failure to state a claim

under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), arguing that Armelin had failed to

exhaust and that the complaint was untimely filed. Armelin admitted in his response

that his complaint was untimely because he wrote down the wrong deadline on his

calendar.

      A magistrate judge recommended that the motion to dismiss be granted,

concluding that the complaint was untimely and that Armelin was not entitled to

equitable tolling. Armelin filed objections to the recommendation, but he did not

challenge the basis of the recommendation or the magistrate judge’s equitable tolling

conclusion. The district court summarily adopted the magistrate judge’s

recommendation and dismissed the complaint. It also denied Armelin’s request to

proceed in forma pauperis (“IFP”), holding that an appeal would not be taken in good

faith. Armelin appeals.

                                           II

      We conclude that Armelin has waived the arguments he seeks to advance on

appeal by failing to present those arguments in his objections to the magistrate

judge’s recommendation. “[W]e have adopted a firm waiver rule when a party fails

to object to the findings and recommendations of the magistrate.” Duffield v.


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Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quotation omitted). “The failure to

timely object to a magistrate’s recommendations waives appellate review of both

factual and legal questions.” Id. (quotation omitted). “There are two exceptions

when the firm waiver rule does not apply: 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.” Id. (quotation omitted). Neither

exception applies in this case.

         Armelin argued in his objections that his complaint had merit. But he did not

present any argument challenging the magistrate judge’s analysis or recommendation

as to timeliness and equitable tolling. (Nor could he, given his concession that he

had simply made a mistake about the filing deadline.) By failing to object to the

basis of the magistrate judge’s recommendation for dismissal, Armelin has waived

our review. See Gardner v. Galetka, 568 F.3d 862, 871 (10th Cir. 2009).

                                           III

         Because Armelin has not advanced a reasoned, non-frivolous argument on

appeal, the appeal is DISMISSED, 28 U.S.C. § 1915(e)(2)(B)(i), and we DENY his

motion to proceed IFP, see DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir.

1991).


                                                 Entered for the Court


                                                 Carlos F. Lucero
                                                 Circuit Judge

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