                                                          FILED
                                               United States Court of Appeals
                                                       Tenth Circuit
                UNITED STATES COURT OF APPEALS
                                                   December 10, 2008
                       FOR THE TENTH CIRCUIT      Elisabeth A. Shumaker
                                                      Clerk of Court
AARON LAUBACH,

           Plaintiff-Appellant,

v.                                          No. 08-6080
                                     (D.C. No. 5:05-CV-01294-F)
JOSEPH SCIBANA, Warden; T.C.                (W.D. Okla.)
PETERSON, Warden; T. JORDAN,
Physician Assistant; MICHAEL
ENGLAND, Physician Assistant;
LAURA PETRASH, Physician
Assistant; NORMA CASTRO,
Physician Assistant; EDWARD
MCNERNEY, Physician Assistant;
D. LUCHE, Physician Assistant;
F. MOLINA, Physician Assistant;
BARBARA MALCHER, Dr., Clinical
Director; W. LEE, Dr.; S. ZEAVIN,
Dr.; SUSAN ENGLE, X-ray
Technician; TILFORD MOLSKNESS,
D.O., Radiologist; B.T. JONES,
Medical Administrator; MIKE MAZE,
Medical Administrator; KEITH
McCORALL, Medical Administrator;
AL KESSLER, Medical Administrator;
MARGARET GRISMNER, Medical
Administrator; DENISE AYNES,
Assistant Health Services
Administrator; DEBRA DES COMBS,
Acting Administrative Secretary;
SHAIN TERRALL, Emergency
Medical Technician; E. FELTZ,
Captain; D. MOORE, Case Manager;
S. WILLIS, Associate Warden; J.
ASHLEY, Lieutenant; J. FOWNER,
Lieutenant,

           Defendants-Appellees.
                          ORDER AND JUDGMENT *


Before HOLMES, ANDERSON, and BALDOCK, Circuit Judges.


      Aaron Laubach, a federal prisoner in Oklahoma, appeals the dismissal of

his pro se complaint filed under Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging deliberate

indifference to his serious medical needs. He also has filed an “Emergency

Motion for Injunctive Relief or in the Alternative Writ of Mandamus on Appeal”

and a “Motion For Order of Contempt of Court.” The district court judge

dismissed the case after adopting a magistrate judge’s finding that Mr. Laubach’s

claims were “either time-barred or subject to dismissal without prejudice for

failure to exhaust administrative remedies.” R., Vol. 3, Doc. 228 at 28. Because

Mr. Laubach failed to file specific objections to the magistrate judge’s report and

recommendation, we conclude that he waived his right to appellate review.

Accordingly, we affirm the district court and deny the outstanding motions.




*
       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.

                                        -2-
                                          I

      Mr. Laubach injured his ankle playing soccer in a prison gymnasium on

November 4, 2001. He sought and received medical treatment, but alleges that

prison medical staff minimized and misdiagnosed his injury, and then wrongly

denied him the use of a cane and braces he needed to walk. He filed several

grievances with prison officials, but all were denied. He also challenged a

number of disciplinary sanctions for refusing to work and obey orders, arguing

that he was disabled by his injury. Then, on November 7, 2005, still dissatisfied

with his treatment, Mr. Laubach filed a complaint in the district court, reciting his

four years of experiences with prison officials since his injury. In addition to

alleging that prison medical staff had a policy of minimizing inmate injuries,

Mr. Laubach claimed that staff delayed his access to administrative remedies;

retaliated by confining him in administrative detention and depriving him of a

cane and pain medication; and were deliberately indifferent to his serious medical

needs, which resulted in intense pain and permanent loss of the full use of his

ankle. Mr. Laubach sought damages, as well as declaratory and injunctive relief. 1

      On motion of several defendants, the district court dismissed Mr. Laubach’s

complaint because he failed to exhaust his administrative remedies on some, but

not all, of his claims. Mr. Laubach appealed, and we remanded in light of the


1
  Mr. Laubach concedes that his claims under the Privacy Act, 5 U.S.C. § 552a,
and the Freedom of Information Act, 5 U.S.C. § 552, are moot.

                                         -3-
Supreme Court’s intervening decision in Jones v. Bock, 549 U.S. 199 (2007). In

particular, we directed the district court to allow defendants an opportunity to

demonstrate Mr. Laubach’s failure to exhaust. Accordingly, after the case was

referred to a magistrate judge, the defendants who had been served and responded

to the complaint supplemented their original motions to dismiss, arguing, inter

alia, failure to exhaust and the applicable statute of limitations. Mr. Laubach, in

turn, contended that the statute of limitations was subject to various tolling

principles and that his prison disciplinary proceedings satisfied the exhaustion

requirement.

      In a report and recommendation dated December 27, 2007, the magistrate

judge agreed that Mr. Laubach’s claims were “either time-barred or subject to

dismissal without prejudice for failure to exhaust administrative remedies.”

R., Vol. 3, Doc. 228 at 28. Finding these defenses equally applicable to all

defendants, the magistrate judge recommended that all claims against the

unserved and unresponsive defendants be dismissed as well. The magistrate

judge’s rationale was that Mr. Laubach exhausted only one grievance, dated

May 16, 2002, which effectively divided his claims into those that were exhausted

by the grievance but barred by the statute of limitations, and those that were not

yet exhausted. The magistrate judge reasoned that the May 16, 2002, grievance

could not have exhausted any remedies for claims based on events occurring after

that date, and thus any claims post-dating that grievance were unexhausted.

                                          -4-
Further, because Mr. Laubach’s May 16, 2002, grievance complained only of

deliberate indifference, and because Mr. Laubach never initiated a grievance to

challenge a prison policy or retaliatory practice, the magistrate judge determined

that he failed to exhaust his remedies for all claims except those asserting

deliberate indifference. Leaving only his claims of deliberate indifference based

on events occurring before May 16, 2002, the magistrate judge found that they

were barred by the applicable two-year statute of limitations. Finally, after

rejecting Mr. Laubach’s exhaustion and tolling arguments, the magistrate judge

alerted Mr. Laubach that he had until January 16, 2008, to object to the

recommended disposition, and that failure to object would waive his right to

appellate review. R., Vol. 3, Doc. 228 at 29.

      On January 7, 2008, Mr. Laubach filed a “Motion for Reconsideration,”

asking the district court for “a finding of fact and law as to all claims presented

for dismissal.” Id., Vol. 4, Doc. 229. He did not present any arguments

concerning exhaustion or the tolling of the statute of limitations. Rather, he noted

that the magistrate judge “failed to make a finding of fact and law as to the

specific [i]ssues of: Absolute Immunity, [Q]ualified Immunity, and Liability to

be [premised] on Supervisory Status.” Id. Construing the motion for

reconsideration as a blanket objection to the report and recommendation, the

district judge reviewed the magistrate judge’s proposed disposition de novo and

found no error. Therefore, on January 31, 2008, the district judge adopted the

                                          -5-
report and recommendation, agreeing that “all claims in [the] Complaint are either

time-barred or subject to dismissal without prejudice for failure to exhaust

administrative remedies.” Id., Doc. 231 at 2.

      On February 12, 2008, Mr. Laubach moved the district judge under Federal

Rule of Civil Procedure 59(e) to alter or amend its judgment. He again declined

to present any argument concerning exhaustion or the untimeliness of his claims.

Instead, he argued that because his motion for reconsideration was only intended

to toll the time he had to file objections, which he had yet to file, the court had

misconstrued his motion. See id., Doc. 233 at 1. The district judge denied the

request. Now on appeal, Mr. Laubach does not address his failure to object to the

magistrate judge’s report, but rather challenges the magistrate judge’s

recommendation that the case be dismissed for failure to exhaust and

untimeliness. Appellees, however, contend that he waived his right to appellate

review by failing to lodge specific, relevant objections to the magistrate judge’s

report and recommendation. They further argue that even if his objections were

adequate, his complaint ought to be dismissed for the reasons discussed by the

magistrate judge. We agree with appellees on both points.

                                           II

      This court has adopted the firm waiver rule, which bars appellate review of

both factual and legal questions if a party fails to timely object to the magistrate

judge’s findings or recommendations. Moore v. United States, 950 F.2d 656, 659

                                          -6-
(10th Cir. 1991). “[O]bjections to the magistrate judge’s report and

recommendation must be both timely and specific to preserve an issue for de novo

review by the district court or for appellate review.” United States v. 2121 E.

30th St., 73 F.3d 1057, 1060 (10th Cir. 1996); see also Fed. R. Civ. P. 72(b)(2)

(permitting a party to “serve and file specific written objections” within ten days

of service) (emphasis added). A district court’s decision to conduct a de novo

review in the absence of specific objections does not necessitate lifting the bar to

appellate review. See 2121 E. 30th St., 73 F.3d at 1061. “This rule does not

apply, however, when (1) a pro se litigant has not been informed of the time

period for objecting and the consequences of failing to object, or when (2) the

‘interests of justice’ require review.” Morales-Fernandez v. INS, 418 F.3d 1116,

1119 (10th Cir. 2005) (quoting Moore, 950 F.2d at 659).

      Neither exception applies here. The magistrate judge informed

Mr. Laubach that he had until January 16, 2008, to file objections and that his

failure to do so would waive his right to appellate review. Although Mr. Laubach

filed his motion for reconsideration within the allotted time, his motion made only

a general request for factual and legal determinations on all claims. We have

previously held that such general objections are insufficient to preserve appellate

review. See 2121 E. 30th St., 73 F.3d at 1060. Even his reference to the three

specific issues—absolute immunity, qualified immunity, and respondeat

superior—was vague and bore no relevance to the magistrate judge’s proposed

                                         -7-
disposition. See id. (“only an objection that is sufficiently specific to focus the

district court’s attention on the factual and legal issues that are truly in dispute

will advance the policies” underlying the firm waiver rule). And lest there be any

lingering doubt whether the motion for reconsideration was adequate to preserve

appellate review, Mr. Laubach expressly conceded in his motion to alter or amend

the district court’s order that he had yet to file any objections. Indeed, he

affirmatively argued that his motion for reconsideration was only intended to toll

the objection period, despite the fact that his motion did not purport to be a

request for an extension. Under these circumstances, Mr. Laubach’s pro se status

does not shield him from the firm waiver rule.

      Nor does the interest-of-justice exception warrant excusing Mr. Laubach

from the firm waiver rule. The interest-of-justice analysis is similar to plain error

review in that it “expressly includes review of a litigant’s unobjected-to

substantive claims on the merits.” Morales-Fernandez, 418 F.3d at 1120. We

also have considered a pro se litigant’s efforts to comply and his proffered

reasons for failing to comply. See Duffield v. Jackson, 545 F.3d 1234, 1238

(10th Cir. 2008). Mr. Laubach, however, offers no explanation for why he failed

to file specific objections to the magistrate judge’s report; we have only his

untimely argument presented to the district court judge that his motion for

reconsideration should have tolled the objection period. But again, because the

motion for reconsideration in no way indicated that it was intended as a request

                                           -8-
for an extension, we reject this argument. We are thus left to determine whether

the district court’s dismissal of Mr. Laubach’s claims involved plain error. 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.” Morales-Fernandez, 418 F.3d at 1122-23 (quotation omitted). We

perceive no error.

      The Prison Litigation Reform Act requires that an inmate exhaust available

administrative remedies before filing suit. See 42 U.S.C. § 1997e(a). The only

remedy Mr. Laubach exhausted concerned his grievance dated May 16, 2002. 2

Consequently, this grievance could not have exhausted remedies for any claims

based on events occurring after that date. See Ross v. County of Bernalillo,

365 F.3d 1181, 1188 (10th Cir. 2004) (“A grievance obviously cannot exhaust

administrative remedies for claims based on events that have not yet occurred.

Nor does a grievance exhaust administrative remedies for all future complaints of

the same general type.”), abrogated on other grounds by Jones v. Bock, 549 U.S.

199 (2007). Although Mr. Laubach maintains that his disciplinary appeals

effectively exhausted his remedies for claims arising after May 16, 2002, only

under the most expansive interpretation of the prison disciplinary process could

we infer that the physical-incapacity defense he raised at those proceedings

2
 Because this grievance complained only of deliberate indifference, the
magistrate judge correctly concluded that the grievance could not serve to exhaust
Mr. Laubach’s claims challenging a prison policy or retaliatory practice.

                                           -9-
exhausted his claims of deliberate indifference. Yet even if we were to endorse

such an approach, Mr. Laubach failed to fully pursue his available disciplinary

appeals, and thus still fails to satisfy the exhaustion requirement. Therefore, the

district court was correct to dismiss Mr. Laubach’s unexhausted claims without

prejudice. If Mr. Laubach wishes to pursue these claims in a new action, he must

first exhaust his administrative remedies.

      As for his claims based on events occurring before May 16, 2002, the

magistrate judge was correct to conclude that they were barred by the statute of

limitations. Mr. Laubach injured his ankle on November 4, 2001. He filed his

complaint on November 7, 2005, under Bivens. Bivens actions follow the same

statute of limitations that applies to personal injury suits in the state where the

action accrues. Roberts v. Barreras, 484 F.3d 1236, 1238 (10th Cir. 2007). In

Oklahoma, that period is two years. Okla. Stat. Ann. tit. 12 § 95(3); Meade v.

Grubbs, 841 F.2d 1512, 1522 (10th Cir. 1988). Consequently, assuming that the

limitations period is tolled while an inmate exhausts his administrative remedies,

see Roberts, 484 F.3d at 1238, and assuming that Mr. Laubach’s May 16, 2002,

grievance covered all claims arising before that date, the limitations period for

those claims would be tolled until he exhausted his administrative remedies on

October 4, 2002. Hence, the two-year statute of limitations for bringing those

claims expired on October 4, 2004. Mr. Laubach, however, did not file his




                                          -10-
complaint until November 7, 2005. Accordingly, these claims are time-barred,

and the district court was correct to dismiss them.

                                          III

      Notwithstanding our determination that Mr. Laubach is subject to the firm

waiver rule, we must nevertheless consider his pending motions for

(1) emergency injunctive relief or writ of mandamus and (2) contempt of court.

Both motions allege that on July 2, 2008, Appellee Margaret Grismner interfered

with Mr. Laubach’s ability to prosecute this appeal by forcefully depriving him of

a cane. Although these motions essentially seek the same substantive relief

Mr. Laubach sought by bringing the underlying action (an order enjoining

defendants from taking his cane), it is apparent that, through these pleadings,

Mr. Laubach is actually attempting to assert a new claim.

      Ordinarily, the proper procedure for bringing any new claim would be for

Mr. Laubach to exhaust his administrative remedies and then file a complaint in

the district court. Here, however, Mr. Laubach endeavors to circumvent the

correct procedure by asking that we take the extraordinary step of granting an

injunction, mandamus, or contempt order, without offering any valid justification

for the extraordinary relief he seeks. Nothing in this patently meritless appeal

leads us to conclude that such extraordinary relief is warranted, and there is no

indication that he has or will suffer irreparable harm if relief is not granted.

Indeed, nothing suggests that his ability to prosecute this appeal has been

                                         -11-
impeded or that he could not initiate a new action after properly exhausting his

administrative remedies. Consequently, because Mr. Laubach may not

circumvent the correct procedure for bringing a new claim and fails to make the

necessary showings required for relief, his motions are denied.

                                        IV

      The judgment of the district court is AFFIRMED. Mr. Laubach’s

“Emergency Motion for Injunctive Relief or in the Alternative Writ of Mandamus

on Appeal” is DENIED. His “Motion For Order of Contempt of Court” is

DENIED, and Mr. Laubach is reminded that he remains obligated to continue

making partial payments until his filing fee is paid in full. See 28 U.S.C.

§ 1915(b)(1).


                                                    Entered for the Court



                                                    Stephen H. Anderson
                                                    Circuit Judge




                                        -12-
