                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         APR 2 2003
                            FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


    MARK ALAN STREPKA,

                Plaintiff-Appellant,

    v.                                           Nos. 02-1147 & 02-1164
                                                   (D.C. No. 00-D-56)
    J. GRAYSON ROBINSON, * Sheriff;                    (D. Colo.)
    CLASSIFICATION EMPLOYEE,
    John or Jane Doe that classified the
    third person (assailant) into cell
    4-B-15; CAPT. TAYLOR, Keeper of
    A.C.D.F.; CLASSIFICATION
    SUPERVISOR, Mary, et. seq.;
    ARAPAHOE, BOARD OF COUNTY
    COMMISSIONERS, 18th Judicial
    District,

                Defendants-Appellees.


                            ORDER AND JUDGMENT         **




Before LUCERO , McKAY , and BALDOCK , Circuit Judges.




*
       J. Grayson Robinson is the current Arapahoe County Sheriff. In accordance
with Rule 43(c)(2) of the Federal Rules of Appellate Procedure, Sheriff Robinson
is substituted for Patrick J. Sullivan, Jr. as the appellee in this action.
**
      This order and judgment is not binding precedent, except under the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.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

       In appeal No. 02-1147, plaintiff Mark Alan Strepka, a prisoner proceeding

pro se, seeks review of the district court’s order adopting the recommendation of

the magistrate judge and granting summary judgment to defendants on his claims

that his civil rights were violated while he was a pretrial detainee at the Arapahoe

County Detention Facility.   1
                                 He also appeals the district court’s order denying his

post-judgment request to reconsider the judgment,      see R. doc. 129 ( objections to

district court’s orders and judgments), which was assigned appeal No. 02-1164.

Because Mr. Strepka did not file his objections to the magistrate judge’s

recommendation within the required time, the district court did not consider his

objections, but it did review the recommendation and concluded there was no

clear error.   See Fed. R. Civ. P. 72(b) advisory committee’s note. In these

companioned appeals, Mr. Strepka requests review of the merits of his civil rights

claims. Before we can reach the merits, however, we must first determine

whether he waived his right to appeal by failing to file timely objections to the


1
      Mr. Strepka does not challenge on appeal the district court’s May 9, 2001
order adopting the magistrate judge’s recommendation to dismiss some of his
claims and some defendants.

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magistrate judge’s recommendation. We exercise jurisdiction under 28 U.S.C.

§ 1291, and dismiss appeal No. 02-1147 because Mr. Strepka waived appellate

review by failing to object to the magistrate judge’s recommendation within the

required time period. In appeal No. 02-1164, we affirm the district court’s order

denying reconsideration.

      The magistrate judge’s recommendation was mailed to Mr. Strepka on

January 31, 2002. It advised him that he had ten days to file objections. Pursuant

to Rules 5 and 6 of the Federal Rules of Civil Procedure, intervening weekends

and holidays are excluded from the time period and three days are added if the

document was served by mail. Consequently, Mr. Strepka’s objections were due

on February 20, 2002. The certificate of mailing on his objections was dated

February 21, 2002, which is considered the filing date because that is the date on

which he mailed the pleading from prison.         See Dunn v. White , 880 F.2d 1188,

1190 (10th Cir. 1989) ( objections considered mailed when placed in prison

mailbox). Mr. Strepka’s objections were filed one day late.

      “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 (10th Cir. 1996). The two exceptions to the firm waiver rule are

when the ends of justice require the waiver rule to be set aside and when the


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magistrate judge’s order does not inform a pro se litigant of the consequences of

failing to file an objection.   Id. at 1413. Here, the magistrate judge’s

recommendation clearly informed Mr. Strepka of the consequences of failing to

object. Accordingly, we will apply the waiver rule unless the ends-of-justice

exception dictates otherwise.

       We note that the time to file objections began to run on the date the

recommendation was filed and mailed. Prisoners have limited access to legal

materials. Mr. Strepka’s objections were only one day late. Therefore, we

conclude that we should look very closely at whether to apply the

interests-of-justice exception.

       Fortunately, we have the benefit of a thorough analysis of the facts and law

to guide us in determining whether to apply the exception to the firm waiver rule.

It is all contained in the magistrate judge’s recommendation. We conclude there

is nothing in the record to support applying the exception. Consequently, we find

that Mr. Strepka waived his right to appeal and we dismiss appeal No. 02-1147.

       We turn to appeal No. 02-1164, in which Mr. Strepka challenges the district

court’s order rejecting his “Objections to Judge, Wiley Y. Daniels’, Premature

Actions and Orders/Judgments Entered; pursuant to Fed. R. Civ. P. 46; and

Demand for Proper ‘limine’.” [sic, generally]. The district court struck the

motion and denied it as moot because final judgment had already been entered.


                                            -4-
We construe the motion as one seeking post-judgment relief and review the

district court’s denial for an abuse of discretion.   See Buchanan v. Sherrill , 51

F.3d 227, 230 (10th Cir. 1995). The district court allowed Mr. Strepka the

required ten days to object to the magistrate judge’s recommendation. It reviewed

the recommendation and found no clear error. Mr. Strepka’s objections were filed

after the due date. As noted above, we have reviewed the file and related

materials, as well as the magistrate judge’s recommendation, and have found no

ground to invoke the ends-of-justice exception. Accordingly, we hold that the

district court did not abuse its discretion on denying post-judgment relief.

       Mr. Strepka also complains that the district court denied as moot his motion

for a preliminary injunction, filed after the final judgment was entered. Given our

conclusion that he was not entitled to post-judgment relief, we find no error. He

also charges that the district court mailed its order adopting the magistrate judge’s

recommendation to the wrong address, which delayed his receipt of the order. He

does not explain, however, how the alleged error in his mailing address adversely

affected his ability to object to the magistrate judge’s recommendation or to seek

post-judgment relief. Notably, he does not allege that the magistrate judge’s

recommendation was mailed to the wrong address. Therefore, the order in appeal

No. 02-1164 is affirmed.




                                              -5-
       Finally, Mr. Strepka asserts that the district judge should have recused. He

did not present this issue to the district court. We generally do not review issues

that were not raised in the district court.   Walker v. Mather (In re Walker)   , 959

F.2d 894, 896 (10th Cir. 1992). Mr. Strepka requests that we depart from the

general rule and address the merits of his recusal argument. We decline to do so,

but we note that adverse legal rulings are not grounds for recusal.     Glass v.

Pfeffer , 849 F.2d 1261, 1268 (10th Cir. 1988);     see also 28 U.S.C. §§ 144, 455;

United States v. Cooley , 1 F.3d 985, 993-94 (10th Cir. 1993) (collecting cases

summarizing circumstances not meeting standard for recusal).

       Mr. Strepka’s motion to proceed without prepayment of costs and fees is

granted. He is reminded that he is obligated to continue making partial payments

until the entire fee has been paid in both appeals. His motion for partial denial of

appellee’s motion for extension of time is denied.

       Appeal No. 02-1147 is DISMISSED. The order denying post-judgment

relief in appeal No. 02-1164 is AFFIRMED. The mandate shall issue forthwith.


                                                        Entered for the Court



                                                        Monroe G. McKay
                                                        Circuit Judge




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