                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                  November 21, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                     Clerk of Court
                            FOR THE TENTH CIRCUIT


    MALINA V. LAZAROV,

                Plaintiff-Appellant,

    v.                                                    No. 11-1097
                                             (D.C. No. 1:10-CV-01238-CMA-MJW)
    JAMES KIMMEL; SUZANNE                                  (D. Colo.)
    STAIERT; JOHN JONES; TRENT
    COOPER,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges.



         Malina Lazarov, appearing before us pro se, is a resident of Littleton,

Colorado who feels that she has been illegally harassed by her neighbors. She

made a number of calls to the Littleton Police Department (LPD) complaining of

this illegal harassment. Ms. Lazarov worked mostly at night, and her main



*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
complaint was that the children who lived around her were being unreasonably

loud while they played outside her apartment during the day, which disrupted her

ability to sleep. She also asserted that the parents of the children harassed her in

response to Ms. Lazarov’s complaints to authorities and her videotaping of the

children as support for her complaints. In response to her calls, she was informed

by the police that they had determined that the noise made by the playing children

was not unreasonable during daylight hours and that she needed to stop calling

the police department. Eventually, after making another complaint, she was

arrested and later convicted by a jury of “violating Littleton Ordinance 6-14-16:

Public Officials, Obstruction of Duties: (A) Resisting the Duties of Public

Officials: 7. False Information.” Aplt. App. at 231. She subsequently filed a pro

se federal civil rights complaint under 42 U.S.C. § 1983 against the

defendants-appellees. According to Ms. Lazarov’s complaint, Mr. Jones is a

police officer with the LPD; Mr. Cooper, a Lieutenant with the LPD, is

Mr. Jones’s supervisor; Ms. Staiert is the Littleton City Attorney; and

Mr. Kimmel is the former municipal judge who presided over her jury trial. In

her complaint, Ms. Lazarov asserted that the defendants-appellees violated her

rights under the First, Eighth, and Fourteenth Amendments to the United States

Constitution.

      On January 21, 2011, the magistrate judge recommended that

Ms. Lazarov’s claims against Judge Kimmel be dismissed on the basis of absolute

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judicial immunity, that her claims against Ms. Staiert be dismissed on the basis of

absolute prosecutorial immunity, and that her claims against Officer Jones and

Lieutenant Cooper be dismissed on the basis of qualified immunity, holding that

her factual allegations did not show that defendants violated her constitutional

rights, nor would reasonable persons in defendants’ positions have known their

conduct violated constitutional rights. The magistrate judge’s recommendation

specifically notified Ms. Lazarov in bold type that she had fourteen days after

service of the recommendation to file specific written objections, and that failure

to do so would waive de novo review of the recommendation by the district judge

and appellate review of all factual and legal questions.

      On February 4, 2011, Ms. Lazarov filed a Motion for Extension of Time,

seeking a twenty-one-day extension of time in which to file her written

objections. She listed four reasons for seeking the extension: (1) the district

court judge ruled on five previous motions immediately prior to issuing his

recommendation, she wished to file objections to those rulings, and it was

impossible for her to both object to those rulings, and file her objections to the

magistrate judge’s recommendation, in the time given; (2) she needed additional

time to find an attorney; (3) she was having to spend time looking for rental

assistance because she was unemployed due to defendants’ actions; and (4) it was

impossible to live a normal life due to the constant harassment she had to endure

at home.

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      On February 9, 2011, the district court denied her motion for extension of

time, adopted the magistrate judge’s recommendation, and dismissed her case. As

to the requested extension, the court noted that it was Ms. Lazarov’s seventh

request for extension in a cause of action that had been pending for less than a

year. The court noted that she had complained in a number of the extension

requests about the need to find an attorney and that she had complained about

having insufficient time due to her neighbor, her health, court appearances and

psychological evaluations. The court noted that Ms. Lazarov’s pro se status did

not entitle her to leniency from court deadlines. Following the court’s dismissal,

Ms. Lazarov filed her appeal with this court.

      On appeal, Ms. Lazarov first argues that the district court erred in failing to

grant her extension motion. Her second argument is that even if she failed to file

timely objections, this court should reverse and remand the district court’s

decision because it constituted plain error. We disagree as to both arguments.

                                          I.

      Under Federal Rule of Civil Procedure 6(b): “When an act may or must be

done within a specified time, the court may, for good cause, extend the time[.]”

We review the denial of a motion for extension of time under the abuse of

discretion standard. Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d

1238, 1242 (10th Cir. 2010), petition for cert. filed, 80 U.S.L.W. 3015 (U.S.

Nov. 5, 2010) (No. 10-769). “A district court abuses its discretion if its decision

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is arbitrary, capricious, whimsical, or manifestly unreasonable.” Bylin v. Billings,

568 F.3d 1224, 1229 (10th Cir. 2009) (quotation omitted). Described another

way: “A district court abuses its discretion where it commits a legal error or

relies on clearly erroneous factual findings, or where there is no rational basis in

the evidence for its ruling.” Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140,

1157 (10th Cir. 2011) (quotation omitted).

      Here, Ms. Lazarov argues that the district court only addressed one of her

causes for seeking an extension of time and that “means that [the court] has

tacitly agreed with them.” Aplt. Opening Br. at 5. Further, she asserts that the

failure to explicitly address all her causes shows that the decision is unjust.

Finally, she asserts that the strongest reason for granting her an extension of time

was that it was unreasonable to expect her to file both her objections to the

recommendation and objections to the five previous court rulings by the district

court judge within 17 days.

      First, it is clear that the district court did not “tacitly agree” that any of

Ms. Lazarov’s causes for extension constituted “good cause.” If it had, it would

have granted the extension. Second, the court based its denial on Ms. Lazarov’s

numerous prior requests for extensions, the fact that she had had three months to

hire an attorney since the court had previously granted an extension of time to do

so, and the fact that Ms. Lazarov’s pro se status did not entitle her to an

extension. It seems obvious that the court treated the three allegedly-unaddressed

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causes (i.e., insufficient time to respond to numerous rulings, time needed to seek

rental assistance, and constant harassment at home) as conditions of her pro se

status that were not sufficient to warrant an extension.

      Lastly, Ms. Lazarov’s need for additional time so that she could file what

were essentially motions to reconsider five interlocutory rulings on previous

motions made by the district court judge, does not amount to “good cause” for an

extension of time to file her objections to the magistrate judge’s recommendation.

First of all, three of the five rulings that Ms. Lazarov wanted to seek

reconsideration of, were denials of previous motions to reconsider. The other two

rulings were on motions for extensions of time to file reconsideration motions.

More importantly, her assertion that she needed additional time to “respond” to

these orders was based on a misreading of Fed. R. Civ. P. 12(a)(4)(A). That

portion of Rule 12 concerns how the time limit for a responsive pleading is

affected by, say, a defendant filing a motion to dismiss for lack of subject matter

jurisdiction prior to filing an answer. Ms. Lazarov’s motion makes clear that she

misread the rule as setting a time limit in which she was required to file a

“responsive pleading” to these court rulings. The district court did not abuse its

discretion in denying Ms. Lazarov’s motion for extension of time to respond to

the recommendation.




                                         -6-
                                         II.

      Ms. Lazarov next contends that reversal is required because the district

court’s dismissal constitutes plain error. She asserts that the adoption of the

recommendation was plain error because: “[The recommendation] is a blatant,

willful and wanton distortion of the facts and evidence upon which

Appellant’s case is built. In addition, it is so grotesquely fallacious that, in

Appellant’s view, it can only elicit revulsion and indignation in the mind of any

honest and unbiased reader of it.” Aplt. Opening Br. at 8.

      Under our “firm waiver rule,” because Ms. Lazarov failed to file timely

objections to the magistrate judge’s recommendation, she has waived appellate

review. Wirsching v. Colorado, 360 F.3d 1191, 1197 (10th Cir. 2004).

Nevertheless, the firm waiver rule does not apply (1) when a pro se litigant was

not notified of the time period for filing objections and the consequences for

failing to do so, (2) when the interests of justice warrant, or (3) when the party

that failed to object makes a showing of plain error. See Wardell v. Duncan,

470 F.3d 954, 958 (10th Cir. 2006). Here, it is clear that Ms. Lazarov was

notified of the consequences of her failure to file objections. In assessing

whether the interests of justice favor an exception to the firm waiver rule, “we

have considered factors such as a pro se litigant’s effort to comply, the force and

plausibility of the explanation for his failure to comply, and the importance of the

issues raised.” Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008)

                                         -7-
(quotation omitted). And plain error is “(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. (quotation omitted).

      We have examined the briefs, the record, and the applicable law in light of

the applicable standard of review and find that the interests of justice do not

warrant non-application of the firm waiver rule. Nor do we find plain error in the

district court’s adoption of the magistrate judge’s recommendation and dismissal

of the case.

      The judgment of the district court dismissing Ms. Lazarov’s cause of action

is AFFIRMED. Ms. Lazarov’s Motion for Sanctions against Appellees is

DENIED. Ms. Lazarov’s Motion for Leave To Proceed on Appeal Without

Prepayment of Costs or Fees is GRANTED.


                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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