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

                             FOR THE TENTH CIRCUIT                          May 2, 2016
                         _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
KEVIN WAYNE MCDANIELS,

      Plaintiff - Appellant,

v.                                                         No. 15-4147
                                               (D.C. No. 1:14-CV-00124-DN-DBP)
FNU GOFF, Detective, Ogden City Police                      (D. Utah)
Department, individually and in his official
capacity; OGDEN CITY POLICE
DEPARTMENT; TIM SCOTT, Officer,
Ogden City Police Department,
individually and in his official capacity;
MIKE CALDWELL, Mayor of Ogden ,
Utah, individually and in his official
capacity,

      Defendants Cross Claimants -
      Appellees,

and

FEDERAL BUREAU OF
INVESTIGATION; WILLIAM
KENDALL, U.S. Attorney, Utah,
individually and in his official capacity;
OGDEN COUNTY PROSECUTOR’S
OFFICE,

      Defendants Cross Claim
      Defendants - Appellees.
                       _________________________________

                               ORDER AND JUDGMENT*

       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
                                                                           (continued)
                        _________________________________

Before BRISCOE, LUCERO, and PHILLIPS, Circuit Judges.
                   _________________________________

        Kevin Wayne McDaniels, a federal prisoner proceeding pro se, appeals the

district court’s order denying his motions to compel an investigation, to enter a

default against the defendants, and to amend his complaint. The district court

adopted the recommendation of a magistrate judge. We have subject-matter

jurisdiction over only the portion of the order denying the motions to compel an

investigation. Even so, we do not address the merits because Mr. McDaniels failed to

file an objection to the magistrate judge’s report and recommendation. The

remainder of the order being appealed is not a final order. Therefore, we lack

jurisdiction to review it. Accordingly, we affirm in part and dismiss in part.

   I.      Background

        Mr. McDaniels maintains that, while in prison, another prisoner told him who

had committed the unsolved 2008 murder of Jeffrey Bancroft. He asserts that he told

this information to the defendants, who are law-enforcement personnel, believing that

he would be entitled to a reduction of his sentence. He claims that he is now in

danger from other prisoners who know that he is an informant. In his amended

complaint, Mr. McDaniels sought monetary damages against the defendants for their


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.

                                           2
failure to arrange a sentence reduction in exchange for his information about the

Bancroft murder.

         Mr. McDaniels filed several motions in the district court. In the order under

review here, the court addressed and denied the three motions referred to above. On

appeal, however, Mr. McDaniels argues (1) the defendants breached their promise of

a sentence reduction; (2) the magistrate judge and the district judge conspired with

the defendants to obstruct justice, “defraud[] the courts and the public,” Aplt.

Opening Br. at 2, fraudulently conceal Mr. McDaniels’s role in solving the Bancroft

murder, and cover up their errors in investigating the murder; (3) he was denied

meaningful access to the courts because he deserves a sentence reduction for solving

the murder but has not received one; and (4) the defendants have denied his request

to serve the remainder of his sentence in a protective-custody facility. In addition, he

requests an order directing the appropriate defendants to file a motion to reduce his

sentence.

   II.      Discussion

         We have liberally construed Mr. McDaniels’s pro se filings. See Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garrett v. Selby Connor Maddux &

Janer, 425 F.3d 836, 840 (10th Cir. 2005). We do not, however, “take on the

responsibility of serving as the litigant’s attorney in constructing arguments and

searching the record.” Garrett, 425 F.3d at 840. Moreover, “pro se parties [must]

follow the same rules of procedure that govern other litigants.” Id. (internal

quotation marks omitted).

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      The district court denied Mr. McDaniels’s motions seeking to compel the

defendants to investigate the Bancroft murder. To the extent Mr. McDaniels’s

appellate briefs can be construed as an appeal of an order denying a request for

injunctive relief, we have jurisdiction. See 28 U.S.C. § 1292(a)(1) (providing that

federal courts of appeals have jurisdiction over interlocutory orders refusing

injunctions); Petrella v. Brownback, 787 F.3d 1242, 1254 (10th Cir. 2015) (“[I]t is

well established that we have jurisdiction to review interlocutory orders expressly

denying injunctive relief pursuant to 28 U.S.C. § 1292(a)(1).”). Even though we

have jurisdiction, we do not address this claim because Mr. McDaniels did not file an

objection to the magistrate judge’s report and recommendation.

      Under our firm-waiver rule, Mr. McDaniels’s failure to object “waives

appellate review of both factual and legal questions.” Casanova v. Ulibarri,

595 F.3d 1120, 1123 (10th Cir. 2010) (internal quotation marks omitted). “This rule

does not apply, however, 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.” Morales-Fernandez v. INS, 418 F.3d 1116, 1119

(10th Cir. 2005) (internal quotation marks omitted).

      The first exception is inapplicable because the magistrate judge’s report and

recommendation stated:

      Copies of the foregoing Report and Recommendation are being sent to all
      parties who are hereby notified of their right to object. Within fourteen
      (14) days of being served with a copy, any party may serve and file written
      objections. Failure to object may constitute a waiver of objections upon
      subsequent review.

                                           4
R. Vol. I, at 278.

       We also determine that the second exception—interests of justice—does not

warrant granting Mr. McDaniels relief from the firm-waiver rule. “We may grant

relief from the firm waiver rule in the interests of justice, considering such factors as

a pro se litigant’s effort to comply, the force and plausibility of his explanation for

not complying and the importance of the issues raised.” Klein v. Harper, 777 F.3d

1144, 1147 (10th Cir. 2015). Mr. McDaniels does not claim that he attempted to file

an objection to the magistrate judge’s report and recommendation. Instead, he relies

on his objection to the district court’s order. See Aplt. Reply Br., Attach. 1. This is

insufficient, so the first two factors weigh against Mr. McDaniels.1

       “[T]he interests of justice analysis . . . is similar to reviewing for plain error.”

Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008). A plain-error showing

requires “(1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

Id. (internal quotation marks omitted). Mr. McDaniels has offered no argument or

authority to refute the district court’s determination that “the Supreme Court has

repeatedly held that ‘a private citizen lacks a judicially cognizable interest in the


       1
        Defendants Goff, Scott, and Caldwell have provided a copy of a document
they received purporting to be a “Notice of Objection to Report and
Recommendation” submitted by Mr. McDaniels. See Aplee. Br. (Goff, Scott,
Caldwell), Attach. 1. But the district court docket sheet does not reflect that such a
document was filed, the district court’s order states that no objection to the report and
recommendation was filed, and Mr. McDaniels does not claim he filed the document.
Therefore, we do not consider it.

                                               5
prosecution or nonprosecution of another.’” R. Vol. 1, at 275-76 (quoting Town of

Castle Rock v. Gonzales, 545 U.S. 748, 767 n.13 (2005)). He merely states in

conclusory fashion that solving the Bancroft murder warrants review of his claims

and the district court abused its discretion in holding that it is not his duty or right to

solve a murder. Not only are these statements insufficient to meet the interests-of-

justice exception to the firm-waiver rule, they are insufficient even to invoke

appellate review. See Kerber v. Qwest Pension Plan, 572 F.3d 1135, 1146 (10th Cir.

2009) (rejecting appellate claim as inadequately briefed because the claim was

addressed in only conclusory fashion). Consequently, we do not address

Mr. McDaniels’s challenge to the ruling denying his motions seeking to compel the

defendants to investigate the Bancroft murder.

       The remaining rulings by the district court are not a final order so we lack

jurisdiction to address them. See 28 U.S.C. 1291 (providing that federal courts of

appeals have jurisdiction over all final decisions of the district courts). “As a general

rule, this court has jurisdiction over only final orders, those that end the litigation on

the merits and leave nothing for the court to do but execute the judgment.” Oil,

Chem., & Atomic Workers Int’l Union (AFL-CIO) v. Conoco, Inc., 241 F.3d 1299,

1302 (10th Cir. 2001) (brackets and internal quotation marks omitted). The rulings

denying Mr. McDaniels’s motions to enter a default against the defendants and to

amend his complaint did not end the litigation on the merits. That his appellate

arguments do not address these rulings is irrelevant to our determination that this

court lacks jurisdiction over the nonfinal order.

                                             6
   III.   Pending Motions

       We deny Mr. McDaniels’s second motion for appointment of counsel. We

also deny his “Motion Requesting an Order by the Court for the Defendants to

Contact Plaintiff[’]s U.S. Atty Lance Crick, Greenville, S.C. to Make Sure Plaintiff

Receives a Downward Departure for His Assistance” and “Motion to Compel the

U.S. Attorney[’]s Office as a Whole to file a Downward Departure for Substantial

Assistance in Solving the Jeffrey Bancroft Murder.” Both motions ask this court to

require prosecutors to seek a sentence reduction for Mr. McDaniels. It is beyond our

purview to order this relief. Cf. United States v. Perez, 955 F.2d 34, 36 (10th Cir.

1992) (“The government is in the best position to determine whether a defendant

provides assistance substantial enough to warrant filing a [motion to lower a

defendant’s sentence], and we are not convinced that the government here erred

significantly in its assessment.”).

       Mr. McDaniels’s motion to proceed in forma pauperis (IFP) is granted; he is

authorized to proceed on appeal without prepayment of fees, but he is nevertheless

“required to pay the full amount of [the] filing fee,” 28 U.S.C. § 1915(b)(1).

Mr. McDaniels has also filed a motion seeking reimbursement of all filing fees he has

paid in the district court and this court. He contends, without citing any legal

authority, that he is not required to pay these fees because he solved the Bancroft

murder. The motion seeking reimbursement is denied.




                                           7
   IV.    Conclusion

      The district court’s order denying Mr. McDaniels’s motions to compel an

investigation is affirmed. The remainder of the appeal is dismissed for lack of

subject-matter jurisdiction. Mr. McDaniels’s motion to proceed IFP on appeal is

granted and he is reminded that he is obligated to continue making partial payments

until the entire fee has been paid. He is not entitled to the reimbursement of any

filing fees, however, so his motion for reimbursement is denied. All other pending

motions are denied.


                                           Entered for the Court


                                           Mary Beck Briscoe
                                           Circuit Judge




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