                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                         MAY 24 1999

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                             Clerk


 QUINTERO and KANSAS
 ADVOCACY AND PROTECTIVE
 SERVICES, INC., et al.,

          Plaintiffs-Appellees,

 v.
                                                       No. 98-3129
 ENCARNACION, ROCHELLE                           (D.C. No. 96-1205-MLB)
 CHRONISTER, as the SECRETARY                           (Kansas)
 OF SOCIAL AND
 REHABILITATION SERVICES OF
 KANSAS, and MANI LEE, as the
 SUPERINTENDENT of LARNED
 STATE HOSPITAL, et al.,

          Defendants-Appellants.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, MAGILL, ** and EBEL, Circuit Judges.




      *
       This order and judgment is not binding precedent, except under the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.

       The Honorable Frank J. Magill, Senior Circuit Judge, United States Court
      **

of Appeals for the Eighth Circuit, sitting by designation.
      At issue in this interlocutory appeal is whether the Eleventh Amendment

bars an action by Kansas Advocacy and Protection Services, Inc. (KAPS) against

Rochelle Chronister, Secretary of the Department of Social and Rehabilitation

Services, and Mani Lee, Superintendent of Larned State Hospital. Because we

conclude that defendants failed to object to the portion of the magistrate judge’s

Report and Recommendations which concluded the Eleventh Amendment does not

preclude KAPS’s action against Ms. Chronister and Mr. Lee, we dismiss the

appeal.

      KAPS and Rita Quintero, a former patient at Larned State Hospital, brought

suit against numerous state employees, in their individual and official capacities,

who were involved with Ms. Quintero’s commitment and treatment. Ms. Quintero

sought monetary damages for alleged violations of her constitutional rights;

KAPS sought prospective injunctive and declaratory relief. Defendants responded

by filing a motion to dismiss, asserting inter alia that the Eleventh Amendment

barred all of the official capacity actions against them. The case was referred to a

magistrate judge who determined Ms. Chronister and Mr. Lee “are the only

defendants in a position to carry out injunctive relief,” Aplt. App. at 83, and so

were amenable to suit notwithstanding the Eleventh Amendment. The magistrate




                                         -2-
judge recommended that the official-capacity claims against all the other

defendants be dismissed.

      The district court set page limits for memoranda seeking review of the

magistrate judge’s report and required a consolidated brief. Various defendants

stated their objections in a memorandum brief several pages short of the page

limit. While raising a number of other issues, the only discussion of the Eleventh

Amendment in that brief was as follows:

      The defendants do not challenge the Report’s recommendation in
      their favor on the Eleventh Amendment bars, but do respectfully
      reserve their right of response to any briefing of the plaintiffs on this
      issue.

Id. at 103. 1 After considering the parties’ objection to the report, the district

court adopted the magistrate judge’s recommendations on Eleventh Amendment

immunity in their entirety. Id. at 125-26. This interlocutory appeal followed.

See id. at 171.




      1
         Not surprisingly, plaintiffs did not object to the Report’s recommendation
that the Eleventh Amendment does not preclude suit against Ms. Chronister and
Mr. Lee. Instead, they objected to the magistrate judge’s recommendation that all
other defendants be dismissed in their official capacities. In their response to
plaintiffs’ objections, defendants cited Idaho v. Coeur D’Alene Tribe of Idaho,
521 U.S. 261 (1997), and noted that it “adds considerable restrictions on Ex Parte
Young, 209 U.S. 123 (1908) injunction applications.” Aplt. App. at 115.
However, there is not even a sentence arguing that Coeur D’Alene (or any other
authority for that matter) established Eleventh Amendment immunity as to Ms.
Chronister and Mr. Lee.

                                          -3-
      “This circuit has adopted a firm waiver rule under which a party who fails

to make timely objection to the magistrate’s findings and recommendations

waives appellate review of both factual and legal questions.” Talley v. Hesse, 91

F.3d 1411, 1412 (10 th Cir. 1996); see also Frontier Refining Inc. v. Gorman-Rupp

Co., 136 F.3d 695, 706 (10 th Cir. 1998); Pippinger v. Rubin, 129 F.3d 519, 533-

34 (10 th Cir. 1997); Niehaus v. Kansas Bar Assn’n, 793 F.2d 1159, 1164-65 (10 th

Cir. 1986). There is an exception “when the ends of justice dictate otherwise or

when the magistrate’s order does not clearly apprise a pro se litigant of the

consequences of a failure to object.” Talley, 91 F.3d at 1413; see also Moore v.

United States, 950 F.2d 656, 659 (10th Cir. 1991).

      Ms. Chronister and Mr. Lee failed to object to the magistrate judge’s

conclusion that the Eleventh Amendment does not preclude actions against them

in their official capacities. There is simply nothing in defendants’ memorandum

brief to the district court to indicate otherwise. Defendants contend that their

“brevity” was mandated by the district court’s imposition of strict page limits.

However, they did not briefly object to this portion of the report, they failed to

object at all. Their decision to use only seven of the ten pages allocated to them

further undercuts this argument. Surely, they could have fit in a paragraph or two

articulating this objection in the extra three pages. Their failure to do so


                                         -4-
constitutes waiver for the purposes of this interlocutory appeal. 2 See Pippinger,

129 F.3d at 533-34.

      Having no issue before us, we DISMISS this appeal. 3

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Chief Judge




      2
        We are not persuaded by defendants’ belated attempt to transmogrify the
Eleventh Amendment issue into one of standing.
      3
          Of course, nothing in this decision precludes Ms. Chronister and Mr. Lee
from raising before the district court the issue of Eleventh Amendment immunity
at a later time in the trial proceedings.

                                         -5-
