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

                       FOR THE TENTH CIRCUIT                     April 27, 2016
                       _________________________________
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
ARMOND DAVIS ROSS,

       Plaintiff-Appellant,

v.                                                  No. 15-6159
                                             (D.C. No. 5:13-CV-00323-R)
WARDEN MIKE ADDISON, SGT.                           (W.D. Okla.)
BUSH, DENNIS ROSE, GEORGE
WILLIAMS, SAM PRESTON, MIKE
McMILLEN,

       Defendants-Appellees.

                       _________________________________

                       ORDER AND JUDGMENT *
                       _________________________________

Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges.
                  _________________________________

      Mr. Armond Davis Ross, an Oklahoma inmate, sued six correctional

officers and administrators under 42 U.S.C. § 1983. The defendants filed a

motion for dismissal or, alternatively, for summary judgment; and the

*
      The parties have not requested oral argument, and we do not believe
it would be helpful. As a result, we are deciding the appeal based on the
briefs. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
magistrate judge recommended dismissal of the claims against three

defendants (Addison, Preston, and Rose) and denial of summary judgment

for the three other defendants (Williams, Bush, and McMillen).

     Mr. Ross did not object to the proposed dismissal of the claims

against defendants Addison, Preston, and Rose, and the district court

dismissed the claims against these defendants. Defendants Williams, Bush,

and McMillen objected to the denial of their motion for summary

judgment. The district judge sustained this objection and granted the

defendants’ motion for summary judgment. After unsuccessfully seeking

post-judgment relief, Mr. Ross appealed the grants of the motions for

dismissal and summary judgment. We affirm.

I.   Mr. Ross waived any appeal point regarding dismissal of
     defendants Addison, Preston, and Rose.

     Mr. Ross did not object to the report and recommendation. In the

absence of an objection, the district judge adopted the report and

recommendation, leading to dismissal of the claims against defendants

Addison, Preston, and Rose. Mr. Ross appeals, but he waived his right to

appellate review by failing to object to the magistrate judge’s report and

recommendation.

     Generally, a party waives the right to appeal by failing to object to a

magistrate judge’s report and recommendation. See Moore v. United States,

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950 F.2d 656, 659 (10th Cir. 1991) (“[F]ailure to make timely objection to

the magistrate’s findings or recommendations waives appellate review of

both factual and legal questions.”). An exception may be appropriate in

rare cases where “the interests of justice so dictate.” Id. at 659. In

applying this exception, we consider whether

           the party who failed to object bears some responsibility for the
            impediment,

           the conduct of the party who failed to object supports a
            plausible excuse or explanation for the failure to timely object,
            and

           the issues raised on appeal involve special or considerable
            importance.

Wirsching v. Colorado, 360 F.3d 1191, 1196-97 (10th Cir. 2004).

      Mr. Ross argues that he did his best, he was disabled, and the State

impeded his access to the courts and the prison law library. 1 These

circumstances do not satisfy the exception because (1) Mr. Ross’s alleged

impediments were not sufficiently onerous to preclude the filing of

objections and (2) Mr. Ross is unlikely to prevail on the merits of his

appellate arguments. For both reasons, we conclude that the interests of

1
      Mr. Ross also contends that the court is mistaken and that he did
object to the magistrate judge’s report and recommendation. For this
contention, Mr. Ross refers to an objection filed in September 2014. But
that objection addressed an earlier report and recommendation involving
unrelated matters.

                                       3
justice do not warrant an exception in this case. Mr. Ross waived his right

to appeal; as a result, we affirm the dismissal of the claims against

defendants Addison, Preston, and Rose.

II.   Summary judgment was correctly granted to defendants Williams,
      Bush, and McMillen.

      Mr. Ross claims that defendants Williams, Bush, and McMillen

violated the Eighth Amendment by failing to provide adequate protection

from a cellmate. According to Mr. Ross, he told the three officers that he

needed to be moved to another cell because he was being stalked and

beaten by his cellmate. Defendant Bush allegedly told the cellmate that he

would be moved, prompting the cellmate to blame Mr. Ross for the move.

But defendant Bush then said that there had been a change of plans

concerning the cellmate’s move. Mr. Ross and his cellmate consulted

separately with defendant McMillen, and officials postponed the move for

a few days. During the postponement, the cellmate battered Mr. Ross.

      Defendants Williams, Bush, and McMillen moved for summary

judgment based on qualified immunity, arguing in part that Mr. Ross had

agreed to postpone the cellmate’s move. In support, defendant McMillen

stated under oath that he had spoken separately to Mr. Ross and the

cellmate and that both men had agreed to wait until the following Monday,

when unit staff would be available to determine whether a cell

                                      4
reassignment would be appropriate. Mr. Ross did not dispute this sworn

account or present any contrary evidence.

      For the summary judgment ruling, we engage in de novo review,

applying the same test applicable in district court. Doe v. Bagan, 41 F.3d

571, 573 (10th Cir. 1994). The district court was to grant summary

judgment if there was “no genuine dispute as to any material fact and the

[movants were] entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). Applying this test, the district court had to view the evidence

favorably to Mr. Ross (as the non-movant) and determine whether a

reasonable jury could find in his favor. Macon v. United Parcel Services,

Inc., 220 F. 3d 708, 712 (10th Cir. 2014).

      We apply this standard against the backdrop of an issue involving

qualified immunity. The defendants enjoy qualified immunity if their

conduct did “not violate clearly established rights of which a reasonable

government official would have known.” Hulen v. Yates, 322 F.3d 1229,

1236 (10th Cir. 2003). Mr. Ross bears the burden to demonstrate that

(1) the defendants’ conduct violated a constitutional or statutory right and

(2) the constitutional or statutory right was clearly established at the time

of the violation. Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010).




                                      5
       To create a triable issue of fact under the Eighth Amendment, Mr.

Ross had to present evidence of “deliberate indifference to a substantial

risk of serious harm.” Farmer v. Brennan, 211 U.S. 825, 828 (1994). The

defendants were deliberately indifferent only if they were consciously

aware of the risk when failing to act. Id. at 847.

       We agree with the district court’s application of this test. The

ultimate issue was whether Mr. Ross had agreed to postpone the move. The

defendants presented sworn testimony that Mr. Ross had agreed to the

postponement, and Mr. Ross did not present any contrary evidence. As a

result, no reasonable fact-finder could conclude that prison officials

consciously disregarded a substantial risk of harm to Mr. Ross. If he felt

sufficiently safe to postpone the move, prison officials could not have been

consciously aware of a substantial risk. As a result, the district court

correctly granted summary judgment to defendants Williams, Bush, and

McMillen based on qualified immunity.

III.   Disposition

       We affirm.

IV.    Status to Proceed in Forma Pauperis

       Mr. Ross seeks leave to proceed in forma pauperis. This request is

granted. But Mr. Ross must make monthly installments toward the filing


                                       6
fee, as required by the Prison Litigation Reform Act. See 28 U.S.C.

§ 1915(b)(1) (2012).


                                  Entered for the Court



                                  Robert E. Bacharach
                                  Circuit Judge




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