                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit

                        UNITED STATES COURT OF APPEALS                       FEB 12 1999

                                       TENTH CIRCUIT                    PATRICK FISHER
                                                                                 Clerk


 DELMER ENGLES, and BARBARA
 ENGLES,

            Plaintiffs - Appellants,

 v.

 THOMAS M. MADDEN CO., an
 Illinois corporation; AMERICAN
 INTERNATIONAL COMPANIES, a
 New York corporation licensed to do
 business isn the state of Oklahoma;
 NATIONAL UNION FIRE
 INSURANCE COMPANY OF                                    No. 98-5149
 PITTSBURGH, PA, is licensed to do                 (D.C. No. CIV-98-179-K)
 business in the state of Oklahoma,             (Northern District of Oklahoma)

            Defendants - Appellees,

      and

 RHODES, HIERONYMUS, JONES,
 TUCKER & GABLE, of Tulsa,
 Oklahoma; DEBORAH
 SHALLCROSS, sued as: District
 Judge Deborah Shallcross, Tulsa
 County Courthouse,

            Defendants.

                               ORDER AND JUDGMENT *


        The case is unanimously ordered submitted without oral argument pursuant to
        *

Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
                                                                           (continued...)
Before BRORBY, EBEL and LUCERO, Circuit Judges.



      Plaintiffs Delmer and Barbara Engles appeal the dismissal of their civil

action against defendants Thomas M. Madden Company, American International

Companies, and National Union Fire Insurance Company. 1 We have jurisdiction

pursuant to 28 U.S.C. § 1291, and affirm. We also deny what we construe as

appellants’ motion to add Shallcross and the Rhodes Law Firm as appellees.

      This is a civil action alleging due process violations stemming from delays

in plaintiffs’ state court action against Madden and others claiming damages from

blasting activities near plaintiffs’ properties. Defendants moved to dismiss; the

district court, pursuant to 28 U.S.C. § 636(b)(1)(A), referred the motion to a

magistrate judge. On June 16, 1998, the magistrate entered a Report and

Recommendation recommending that the district court grant the motion to dismiss



      *
          (...continued)
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.
      1
        Although plaintiffs’ notice of appeal and August 6, 1998, “Statement of
Intention” specifically indicate that they appeal the district court’s dismissal of their
action only as against those three defendants, they have also filed a document titled “New
Evidence” seeking to add, as appellees, defendants Deborah Shallcross and Rhodes,
Hieronymus, Jones, Tucker & Gable (“the Rhodes Law Firm”).

                                           -2-
because of plaintiffs’ failure to state a claim. The magistrate reasoned that

insofar as plaintiffs claimed violations of constitutional rights stemming from

Judge Shallcross’ actions in their state court suit, the judge was immune under the

doctrine of absolute judicial immunity. The magistrate further concluded that no

action under 42 U.S.C. § 1983 was available against the other defendants due to

the absence of any factual contention that they were state actors or acted under

color of state law. 2

       Rather than filing objections to this Report and Recommendation, plaintiffs

filed two motions, one asking that defendants be required to pay all fees and costs

in the case, and the other asking for a continuance of 30-90 days to seek counsel

or have counsel appointed. 3 In an order of July 10, 1998, the district court denied

both motions, adopted the magistrate’s Report and Recommendation, and

dismissed the case. See R. doc. 14, at 1-3.

       As an initial matter, we must address plaintiffs’ failure to file objections to

the magistrate’s report. Generally, failure to file objections to a magistrate’s


       2
        Although defendants moved to dismiss for lack of jurisdiction, the magistrate,
citing Bell v. Hood, 327 U.S. 678, 682-83 (1946), took jurisdiction and proceeded to
reach the merits of plaintiffs’ Section 1983 claims and dismissed for failure to state a
claim. The magistrate additionally construed plaintiffs’ complaint liberally to state a
conspiracy claim under 42 U.S.C. § 1985, but dismissed that claim for failure to allege
“some . . . class-based, invidiously discriminatory animus behind the conspirators’
action.” Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).

     Plaintiffs had ten days—until July 6, 1998—to file objections to the Report and
       3

Recommendation. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

                                           -3-
ruling waives the right to appeal that ruling. See Ayala v. United States, 980 F.2d

1342, 1352 (10th Cir. 1992). However, “[t]he waiver rule as a procedural bar

need not be applied when the interests of justice so dictate.” Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991) (citation omitted). This waiver rule

does not apply to a pro se litigant unless the magistrate’s order apprises the

litigant of the consequences of his or her failure to object. See id. In this case,

the magistrate’s report clearly informed plaintiffs of the ten day deadline for

objections and of the consequences of their failure to object. See R. doc. 7, at 7

(“The failure to file written objections may bar the party failing to object from

appealing any of the factual or legal findings in this Report and Recommendation

that are accepted or adopted by the District Court.”).

      Plaintiffs did file a motion on June 24, 1998, asking the district court to

deny the motion to dismiss and requesting a continuance of 30-90 days and

appointment of counsel. See R. doc. 12, at 1. This motion, however, failed to

raise any specific objections to the magistrate’s Report and Recommendation,

apart from the bare request for denial of the motion to dismiss. See id.

Therefore, plaintiffs are procedurally barred from appealling the magistrate’s

findings, adopted by the district court, unless the “interests of justice” exception

applies. See Moore, 950 F.2d at 659.




                                         -4-
      In responding to this court’s show cause order on the issue of failure to

object to the magistrate’s findings, plaintiff Delmer Engles states that “his only

excuse could be deteriorating medical problems, such as hearing, eyes, and

memory [loss].” Appellant’s Br. at 1. Despite these factors, our review of the

record and the law convinces us that the interests of justice do not dictate an

exception to the procedural bar rule in this case. We agree with the district court

that plaintiffs present no allegations of state action with respect to defendants

Madden, American International, and National Union, and thus fail to state a

claim under 28 U.S.C. § 1983. Therefore, we conclude that the interests of

justice do not dictate that we overlook plaintiffs’ waiver of objection to the

magistrate’s findings.

      We additionally deny plaintiffs’ “New Evidence,” construed as a motion to

add Shallcross and the Rhodes Law Firm as appellees. Plaintiffs’ notice of appeal

and August 6, 1998, “Statement of Intention” clearly indicate that plaintiffs

appeal the district court’s judgment only as to Madden, American International,

and National Union. The “New Evidence” was filed on November 19, 1998, well

after the time period for filing a notice of appeal under Fed. R. App. P. 4(a)(1).

Nor did plaintiffs file in the district court a motion for leave to file a notice of

appeal out of time, pursuant to Fed. R. App. P. 4(a)(5). A timely notice of appeal

is a mandatory prerequisite for the exercise of jurisdiction by this court over any



                                           -5-
party. See Certain Underwriters at Lloyds of London v. Evans, 896 F.2d 1255,

1256 (10th Cir. 1990). As against Shallcross and the Rhodes Law Firm, Plaintiffs

did not timely file either a notice of appeal or a motion for leave to file out of

time. Plaintiffs’ “New Evidence” does not even offer any allegations of good

cause or excusable neglect. This court thus has no jurisdiction over Shallcross

and the Rhodes Law Firm, and plaintiffs’ motion to add them as appellees must be

denied.

      The judgment of the district court is AFFIRMED. The mandate shall

issue forthwith.

                                        ENTERED FOR THE COURT



                                        Carlos F. Lucero
                                        Circuit Judge




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