                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                 September 24, 2008
                                  TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 ANTHONY RAY MARTINEZ,

          Plaintiff-Appellant,
 v.                                                      No. 08-1065
 DENVER DEPUTY SHERIFF,                       (D.C. No. 05-cv-0171-EWN-BNB)
 DAVID O. MARTINEZ, in his official                     (D. Colorado)
 and individual capacity; DENVER
 DEPUTY SHERIFF SGT.
 SULLIVAN, in his official and
 individual capacity; DENVER
 DEPUTY SHERIFF SGT. ROMERO,
 in his official and individual capacity,

          Defendants-Appellees.



                             ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      After examining the briefs and the appellate record, this panel has

determined 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). This case is


      *
        This order and judgment is not binding precedent, except under the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.
therefore ordered submitted without oral argument.

      Anthony Ray Martinez appears pro se and seeks review of the district

court’s dismissal of his civil rights claims for failure to prosecute. This court

exercises jurisdiction pursuant to 28 U.S.C. § 1291 and we REVERSE and

REMAND.

      Mr. Martinez initially set forth three claims against three members of the

Denver Sheriff’s office—David Martinez, the Denver Deputy Sheriff, and

Sergeants Sullivan and Romero (“the defendants”). The first two claims concern

allegations that David Martinez assaulted Anthony Ray Martinez and that

Sergeant Sullivan was deliberately indifferent regarding this assault. The third

claim alleged that Sergeant Romero forced Mr. Martinez to occupy a dirty cell.

Citing to Heck v. Humphrey, 512 U.S. 477 (1994), the district court dismissed the

first two claims. We reversed the dismissal of those claims. Martinez v.

Martinez, 189 F. App’x 815, 817 (10th Cir. 2006). The district court dismissed

Mr. Martinez’s third claim for failure to plead exhaustion of administrative

remedies. We affirmed that dismissal. Id. at 818.

      On November 26, 2007, plaintiff was ordered to show cause by December

10, 2007, for lack of prosecution and failure to comply with court orders. This

show cause order stemmed from Mr. Martinez’s failure to appear at a preliminary

pretrial conference and failure to notify the court. Mr. Martinez did not contact

the court by the stated deadline. On December 11, 2007, the magistrate judge

                                          -2-
assigned recommended that this case be dismissed without prejudice for lack of

prosecution and failure to follow court orders. The recommendation advised the

parties that they had “10 days after service of this recommendation to serve and

file specific, written objections.” R. at 90, 2-3. Additionally, the

recommendation warned that “[a] party’s failure to serve and file specific, written

objections waives de novo review of the recommendation by the district judge . . .

and also waives appellate review of both factual and legal objections.” R. at 90, 2

(citations omitted).

       On January 3, 2008, Mr. Martinez filed a “Notice to Show Cause for Non-

Communication with the Honorable Court.” In this filing, Mr. Martinez

explained that he was unable to contact the court:

       I was . . . arrested and taken to the Denver County Jail, and was
       unable to get to the [l]aw library to prepare the needed documents for
       the court. I was [] taken to the Chyanne [sic] Mountain Re-entry
       Center where I was put in to Segregation, and once again unable to
       get to the [l]aw library. I was [] transported back to the Denver
       County Jail where I’ve been in Building 22-C. And now after over
       30 days I can complete the motion and send it to the court . . . .

R. at 91, 1.

       On January 8, 2008, the district court accepted the magistrate judge’s

recommendation. The order accepting the recommendation stated that “no party

has objected to the recommendation” and that the district court “conducted the

requisite de novo review of the issues, the record, and the recommendation.” R.

at 93, 1. “Based on this review, [the district court] . . . concluded that the

                                           -3-
recommendation is a correct application of the facts and the law.” Id.

Accordingly, the district court dismissed Mr. Martinez’s claims without prejudice.

This order does not mention Mr. Martinez’s filing on January 3, 2008. Mr.

Martinez then filed the present appeal.

      After Mr. Martinez appealed, the magistrate judge denied Mr. Martinez’s

motion for reconsideration, which is how he interpreted Mr. Martinez’s January 3,

2008 notice filing. Distinguishing the filing from a substantive response to the

show cause order, the judge emphasized that the notice filing only explained that

Mr. Martinez did not have access to a law library to prepare court materials, but

did not explain that Mr. Martinez did not know of his obligations to the court and

the corresponding dates for those obligations.

      Although not addressed by either party, we conclude that we have

jurisdiction under 28 U.S.C. § 1291 to review the dismissal of Mr. Martinez’s

action. Section 1291 gives this court “jurisdiction of appeals from the district

courts of the United States . . . .” 28 U.S.C. § 1291. The requirement of finality

“is to be given a ‘practical rather than a technical construction.’” Moya v.

Schollenbarger, 465 F.3d 444, 449 (10th Cir. 2006) (quoting Sherman v. Am.

Fed’n of Musicians, 588 F.2d 1313, 1315 (10th Cir. 1978)). Thus, a district

court’s dismissal without prejudice may be final under section 1291. Id. at 448.

(“[T]hat a dismissal was without prejudice does not necessarily make it non final

under section 1291.”). As discussed later, the district court’s dismissal of the

                                          -4-
action and plaintiff’s complaint were sufficiently final for this court to now

exercise jurisdiction. See Petty v. Manpower, Inc., 591 F.2d 615, 617 (10th Cir.

1979).

         There is another potential bar to this court’s substantive review of Mr.

Martinez’s appeal. Mr. Martinez failed to file timely, written objections to the

magistrate judge’s recommendation. This court applies a firm waiver rule when a

party fails to make timely objections to a magistrate’s findings and

recommendation. Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir.

2005). Under this rule, the party waives appellate review of factual and legal

questions. Id.

         We have recognized three exceptions to the firm waiver rule. First, the rule

does not apply if “a pro se litigant has not been informed of the time period for

objecting and the consequences of failing to object.” Id. (citing Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991)). This exception does not require

actual knowledge on behalf of the pro se litigant. Instead, this court analyzes

whether the magistrate judge’s ruling clearly “attempted to apprise [the litigant]

of the consequences of a failure to object.” Id. Second, the rule does not apply

when the “interests of justice” require review. Id.

         Here, the first exception is inapplicable. As stated, the magistrate judge’s

recommendation clearly stated that Mr. Martinez had 10 days to file written

objections and that failure to do so would waive appellate review.

                                           -5-
      Regarding the second exception, this court has compared “interests of

justice” analysis to review for plain error. Id. at 1120-22. This court has also

identified plain error as a third exception to the firm waiver rule, independent

from the “interests of justice exception.” Wardell v. Duncan, 470 F.3d 954, 958

(10th Cir. 2006) (“The waiver rule may be suspended when the ‘interests of

justice’ warrant, . . . or when the aggrieved party makes the onerous showing

required to demonstrate plain error.”) (citations omitted). Regarding the

independent “interests of justice” exception, the court in Wardell cited Wirshing

v. Colorado, 360 F.3d 1191, 1197-98 (10th Cir. 2004). The court in Wirshing

applied several “interests of justice” factors. These included: (1) the reason for

the party’s delay in responding to or receiving the magistrate judge’s

recommendation; (2) whether this explanation was facially plausible; and (3) the

pro se litigants prior tenacity in pursuing the claims. Wirshing, 360 F.3d at 1198;

Morales-Fernandez; 418 F.3d at 1120 (identifying the Wirshing “interests of

justice” factors 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”).

      Here, Mr. Martinez explains his failure to receive and object to the

magistrate judge’s recommendation was due to his arrest, incarceration, and

change of address. First, it is clear that Mr. Martinez was aware of his obligation

to notify the court of his change of address and failed to do so. As the defendants

                                          -6-
point out, Mr. Martinez previously filed several notices for change of address.

While this discredits Mr. Martinez’s contention that he did not receive the

recommendation, it bolsters his argument that he was unable to contact the court

to object to the recommendation. Mr. Martinez claims he was arrested on

November 23, 2007, three days before the magistrate judge issued the order to

show cause and fifteen days before the magistrate judge filed the

recommendation. Mr. Martinez claims he was placed in segregation and was

unable to work on this case for 30 days. 1 This explanation is facially plausible.

Similar to the pro se litigant in Wirsching, Mr. Martinez has been an active

participant in this case for years. The record indicates that he filed a pro se

complaint, responded to several prior orders to show cause, timely appealed a

prior order of dismissal, requested extensions of time, and submitted a proposed

pretrial order. Failing to object to a recommendation for failure to prosecute is

inconsistent with his prior conduct. We also note that Mr. Martinez’s allegations

under 42 U.S.C. § 1983 are “issues of considerable import.” Wirsching, 360 F.3d

at 1198. Thus, under this standard, the interests of justice support applying an



      1
        Because the district court did not address Mr. Martinez’s January 3, 2008
notice, it is difficult to determine how isolated Mr. Martinez was from the court.
See Bd. of County Comm’rs of County of Adams v. Isaac, 18 F.3d 1492, 1499
(10th Cir. 1994) (“Meaningful review is not possible because we have no factual
record before us.”); United States v. Apodaca, 843 F.2d 421, 431 (“In order to
permit meaningful review of the trial court’s decision, the reasons for the trial
judge’s decision should be placed on the record.”).

                                         -7-
exception to the firm waiver rule and allowing this court to proceed to the merits

of the appeal.

      This result would also hold true if we were to apply plain error analysis.

Plain error exists “when there 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.” Morales-Fernandez, 418 F.3d at 1122-23.

Thus, this court must determine whether the district court erred by not

considering the January 3, 2008 notice when it dismissed Mr. Martinez’s claims

for lack of prosecution and failure to follow court orders.

      In his appellate filings, Mr. Martinez explains that he did not receive the

relevant court orders. The court mailed those orders to an address on Delaware

Court. Mr. Martinez argues that his parole officer, Max Winkler, directed him to

not go to that address and to avoid contact with a person at that address.

Moreover, Mr. Martinez alleges that he was arrested on November 23, 2007 and

placed in a segregation unit, where he did not have the ability to contact the court.

Mr. Martinez contends that he contacted the court as soon as he was able to do so,

noting that he “would never neglect this case[; he has] worked on it for . . .

years.” Mr. Martinez contends the district court failed to address the fact that he

was arrested, and consequently ignored his inability to contact the court. Mr.

Martinez also notes that the district court failed to consider his motion that

explained the situation.

                                           -8-
      The defendants respond that Mr. Martinez did not attempt to timely object

to the magistrate judge’s recommendation and that Mr. Martinez did not notify

the court of his change of address. In support of this argument, the defendants

note that “Mr. Martinez knew about his obligation . . . to notify the Court within

ten days after any change of address or telephone number because he had done so

on five previous occasions.” Aplee. Br. at 6. Additionally, the defendants point

out that Mr. Martinez has not offered any evidence to support his explanation.

They characterize his reference to his parole officer’s instructions and lack of

ability to contact the court as “implausible,” noting “Mr. Martinez does not claim

that he did not have access to an envelope and stamp, so all he needed was a pen

and piece of paper to send his new address to the court and bring his plight to the

Court’s attention but, again, he decided to do nothing.” Id. at 7.

      This court agrees with Mr. Martinez’s contention that the district court

erred when it failed to consider his submitted notice. On January 3, 2008, Mr.

Martinez notified the court that he had been arrested and placed in segregation

between October 9, 2007 and early December 2007. 2 After reviewing the issues

and the record, however, the district court made no mention of this information.

Because the arrest and segregation took place before the magistrate judge issued

his recommendation on December 11, 2007 and spanned the time period for Mr.



      2
          On appeal he clarified the date to be November 23, 2007.

                                         -9-
Martinez to object, this information merited at least some discussion. By not

addressing Mr. Martinez’s arrest and segregation, the district court erred.

       An error is plain “if it is clear or obvious at the time of the appeal.”

Morales-Fernandez, 418 F.3d at 1124 (citing Johnson v. United States, 520 U.S.

461, 468 (1997)). This court has repeatedly stated that a court should read pro se

filings liberally. Wheller v. C.I.R., 528 F.3d 773, 781 (10th Cir. 2008); Hall v.

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant’s pleadings are

to be construed liberally and held to a less stringent standard than formal

pleadings drafted by lawyers.”).

       At the least, the district court should have acknowledged Mr. Martinez’s

January 3, 2008 filing and considered it as a motion for leave to respond out of

time. Mr. Martinez indicated that he was unavailable, but was then ready to

proceed, stating “after over 30 days I can complete the motion and send it to the

court.” R. at 91, 1. For the district court to ignore this filing and state that “[n]o

party has objected to the recommendation” and that the district court “conducted

the requisite de novo review of the issues, the record, and the recommendation[]”

is plain error. R. at 93, 1.

       We must next determine whether the plain error identified affected Mr.

Martinez’s substantial rights. On this issue, Mr. Martinez bears the burden of

showing “‘a reasonable probability that, but for [the error claimed], the result of

the proceeding would have been different.” Morales-Fernandez, 418 F.3d at 1124

                                          -10-
(quoting United States v. Dominquez Benitez, 542 U.S. 74, 82 (2004)).

      Mr. Martinez is in the awkward position of showing that had the district

court considered his January 3, 2008 notice as a motion for leave to file out of

time, it would have granted the motion and treated it also as an objection to the

recommendation. The district court’s omission of any reference to the January 3,

2008 notice places this court in an equally awkward position of reviewing that

omission. The record, however, reveals two prior actions by the district court that

allow this court to determine with reasonable probability that if the district court

had considered the January 3, 2008 notice, the result would have been different.

First, on March 21, 2007, Mr. Martinez filed a “Motion to Show Cause,” stating

that he “ha[d] been placed into administrative segregation with no means to gain

access to the law library, paper or pen.” R. at 47, 1. The district court docketed

this as a motion for extension of time. Second, on October 23, 2007, the

magistrate judge discharged an order to show cause. The explanation that the

magistrate judge considered to “establish[] good cause for [Mr. Martinez’s]

failure to appear at the preliminary pretrial conference” was that Mr. Martinez

was recently released from incarceration and unable to contact the court due to a

holiday. R. at 79, 1. Considering these prior actions by the district court, we

conclude there is a reasonable probability that if the district court had properly

addressed the January 3, 2008 notice, Mr. Martinez’s claims would not have been

dismissed for failure to prosecute.

                                         -11-
      Lastly, to show that the district court’s error seriously affects the fairness,

integrity, or public reputation of judicial proceedings, Mr. Martinez must

demonstrate “that allowing his non-constitutional error to stand would be

‘particularly egregious’ and would constitute a ‘miscarriage of justice.’” Morales-

Fernandez, 418 F.3d at 1124 (quoting United States v. Gilkey, 118 F.3d 702, 704

(10th Cir. 1997)).

      Here, the district court dismissed Mr. Martinez’s claims without prejudice.

Generally, “a district court may, without abusing its discretion, [dismiss without

prejudice] without attention to any particular procedures.” Nasious v. Two

Unknown B.I.C.E. Agents at Arapahoe County Justice Ctr., 492 F.3d 1158, 1162

(10th Cir. 2007). On the other hand, a dismissal without prejudice is effectively a

dismissal with prejudice if the statute of limitations has expired on the dismissed

claims. Gocolay v. N.M. Fed. Sav. & Loan Ass’n, 968 F.2d 1017, 1021 (10th Cir.

1992). Accordingly, it is necessary to determine if the statute of limitations has

expired on Mr. Martinez’s claims.

      Mr. Martinez filed his claims on January 31, 2005, identifying incidents

that occurred in 2004. These claims allege assault and indifference under 42

U.S.C. § 1983. Martinez v. Martinez, 189 F. App’x 815, 816 (10th Cir. 2006).

The statute of limitations for § 1983 claims brought in Colorado “is two years

from the time the cause of action accrued.” Fogle v. Pierson, 435 F.3d 1252,

1258 (10th Cir. 2006). The district court dismissed Mr. Martinez’s claims on

                                         -12-
January 8, 2008. It appears that any attempt by Mr. Martinez to now refile these

claims would be barred by the statute of limitations. Consequently, the district

court’s dismissal without prejudice was effectively a dismissal with prejudice.

      Because of the strong preference for resolution of claims on their merits,

this court considers a dismissal that effectively defeats a “litigant’s right to

redress grievances in the courts” to be “a severe sanction, applicable only in the

extreme circumstances.” Gocolay, 968 F.2d at 1021 (quotations omitted). Such a

severe sanction should be applied only in extreme circumstances and “used as a

weapon of last, rather than first, resort.” Id. (quotations omitted). For a court to

impose this sanction, it must consider identified factors. These include: “(1) the

degree of actual prejudice to the defendant; (2) the amount of interference with

the judicial process; (3) the culpability of the litigant; (4) whether the court

warned the party in advance that dismissal of the action would be a likely

sanction for noncompliance; and (5) the efficacy of lesser sanctions.” Nasious,

492 F.3d at 1162 (quotations omitted).

      Here, there is no indication that the district court or the magistrate judge

considered or applied these factors. Most notably, the district court did not make

any finding regarding the culpability of Mr. Martinez. See Gucolay, 968 F.2d at

1021 (“Foremost, the district court failed to make a finding that [the litigant]

willfully or in bad faith violated the court-ordered deposition deadline. Absent a

finding of willful disregard or other bad faith, reversal is required.”). Given that

                                          -13-
Mr. Martinez notified the court of his situation five days before the court

dismissed the case—reversing its prior efforts to consider such notification to be

sufficient to show good cause and warrant an extension of time—and effectively

eliminated his ability to pursue these claims, the dismissal is particularly

egregious in that it seriously affects the perceived fairness of the involved judicial

proceedings.

      Thus, Mr. Martinez satisfies the requirements for the application of an

exception to the firm waiver rule. The court’s dismissal of Mr. Martinez’s action

without appreciating the import of his January 3, 2008 notice is likewise an abuse

of discretion. See B&B Hardware, Inc. v. Hargis Indus., Inc., 252 F.3d 1010,

1012 (8th Cir. 2001)(describing analysis for abuse of discretion as

“less[]rigorous” than analysis for plain error); Stuart v. Jackson, 24 F. App’x 943,

951 (10th Cir. 2001)(describing the plain error standard as “more rigorous” than

the abuse of discretion standard); Rogers v. Andrus Transp. Servs., 502 F.3d

1147, 1152 (10th Cir. 2007)(citing Nasious, 492 F.3d at 1160 for the statement

“We review dismissals under Rule 41(b) for abuse of discretion.”).

      Accordingly, the district court’s order dismissing Mr. Martinez’s two

claims is REVERSED, and the case is REMANDED to the district court for




                                         -14-
further proceedings. Appellant’s motion to proceed on appeal without

prepayment of fees is granted. He is reminded, however, that he must continue

making partial payments until the filing fee is paid in full.



                                                Entered for the Court,


                                                Mary Beck Briscoe
                                                Circuit Judge




                                         -15-
