                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                       January 26, 2006
                      UNITED STATES COURT OF APPEALS
                                                                      Elisabeth A. Shumaker
                                                                         Clerk of Court
                                    TENTH CIRCUIT



 SOLOMON BROADUS, also known
 as Sulayman Ansar Rahim,

          Plaintiff - Appellant,
 v.

 CORRECTIONS CORPORATION OF
 AMERICA, INC.; DIAMONDBACK
 CORRECTIONAL FACILITY;                                 No. 04-6136
 MICKEY LILES, Warden, in his                     (D.C. No. 03-CV-273-R)
 individual capacity; DELGADO, Unit                     (W.D. Okla.)
 Manager, in his individual capacity;
 CAPTAIN BRYANT, Shift
 Supervisor, in his individual capacity;
 SHOEMAKER, Lieutenant; and MR.
 GREEN, Correctional Officer, in his
 individual capacity,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *




      *
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 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not binding precedent, except under the doctrines of law of the case, res judicata,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. 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.
Before EBEL, McKAY and HENRY, Circuit Judges.


         Solomon Broadus, also known by his Muslim name, Sulayman Ansar

Rahim, is an inmate in Oklahoma state prison. He appeals pro se the district

court’s dismissal of his civil rights action under 42 U.S.C. § 1983 and requests

leave to proceed on appeal in forma pauperis. We affirm the dismissal and grant

his motion to proceed in forma pauperis.

                                 I. BACKGROUND

         In March 2003, while incarcerated in a private prison operated by defendant

Corrections Corporation of America, Inc. (“CCA”), Mr. Broadus filed a civil

rights complaint against CCA and five prison officials 1 under 42 U.S.C. § 1983.

He listed his name on the complaint as “Sulayman Ansar Rahim AKA Solomon

Broadus.” The complaint alleged that the prison officials had violated Mr.

Broadus’s constitutional rights by causing him to be exposed to environmental

tobacco smoke and by subjecting him to a strip search in front of a female officer.

In May 2003, Mr. Broadus was transferred to another prison, the Great Plains

Correctional Facility (“GPCF”), and filed a change of address with the district

court.




       The officials are: Warden Mickey Liles, Unit Manager Delgado, Captain
         1

Bryant, Lieutenant Shoemaker, and Correctional Officer Green.

                                         -2-
      Mr. Broadus’s § 1983 claim was referred to a magistrate judge, who issued

a Report and Recommendation on February 23, 2004. The magistrate judge

recommended that the action be dismissed without prejudice: as to defendants

CCA and Liles, for failure to exhaust administrative remedies; as to the remaining

defendants, for failure to effect timely service of process. A copy of the

magistrate judge’s Report and Recommendation was sent to Mr. Broadus under

just his Muslim name but was returned as undeliverable since the GPCF would

not accept mail in that name. 2 The copy of the Report and Recommendation was

then sent to Mr. Broadus in his birth name; he received that copy on or about

March 1.

      The Report and Recommendation stated that Mr. Broadus had until March

15, 2004 to file objections to it. Mr. Broadus filed a motion for an extension of

time to file objections, which the court docketed on March 5, 2004. Mr. Broadus

realized shortly after filing his motion that he had failed to include a certificate of

mailing, so he sent a separate certificate to the court. On March 18, he received a

response from the district court clerk’s office rejecting his certificate of mailing

since it was not included with his original motion. Meanwhile, on March 8, the

district court had entered an order (“Order #1”) striking Mr. Broadus’s motion for




      Two earlier orders had also been sent to Mr. Broadus under his Muslim
      2

name and returned as undeliverable.

                                         -3-
an extension of time because he had failed to include both an extra copy of his

motion and a certificate of mailing. 3 A copy of Order #1 was mailed to Mr.

Broadus, again in his Muslim name, but was returned to the court as undeliverable

on March 15 — the deadline for filing objections to the Report and

Recommendation. On March 18, the district court sent another copy of Order #1,

this time properly addressed to Mr. Broadus in his birth name but addressed to the

wrong facility. On or about March 23, Mr. Broadus finally received a copy of

Order #1.

      On March 26, the district court entered an order (“Order #2”) dismissing

the action without prejudice as to all defendants. Order #2 stated: “No objection

to the Report and Recommendation has been filed nor has an extension of time in

which to object been granted. Therefore, the Report and Recommendation of the

Magistrate Judge is ADOPTED in its entirety . . . .” 4

      Mr. Broadus timely appealed Order #2. The district court denied his

motion to appeal in forma pauperis, and he renews that motion on appeal.

                                II. DISCUSSION




      This was the second time the court had stricken one of Mr. Broadus’s
      3

motions for failure to include a certificate of mailing.
      4
        A copy of Order #2 was sent to Mr. Broadus, under his birth name, but
again addressed to the wrong facility. It was returned as undeliverable and then
re-sent to the correct address.

                                        -4-
      Mr. Broadus claims on appeal that the district court erred in adopting the

magistrate judge’s Report and Recommendation because his failure to timely file

objections was “no fault of his own” and due to excusable neglect. He contends

that if he had timely received the copy of Order #1, he would have known that the

court had stricken his motion and could have properly refiled a timely motion for

an extension of time. He asks that we remand to the district court so that he “can

have an opportunity to address the magistrate [sic] report and recommendations.”

We affirm the district court’s decision.




                                           -5-
      A. Waiver of appellate rights

      The first question we must address is whether Mr. Broadus, by failing to

timely object to the magistrate judge’s Report and Recommendation, waived his

right to appeal the district court’s dismissal. In this circuit, we have adopted the

“firm waiver rule” that a party who fails to timely object to a magistrate judge’s

findings and recommendations waives appellate review of both factual and legal

questions. Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005).

“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.” Id. Unless Mr.

Broadus meets one of these two exceptions, his failure to timely file an objection

waived his right to appeal.

      The first exception does not apply because the magistrate judge clearly

specified the deadline for filing an objection and explained that failure to make

timely objection to the Report and Recommendation waived appellate rights. The

more difficult question is whether the “interests of justice” require that we review

this appeal. As we recently noted, “interests of justice” is “a rather elusive

concept” that we “have not defined . . . with much specificity.” Id. at 1119–20

(quotation omitted). However, we have enumerated several factors to look at,

including “a pro se litigant’s effort to comply, the force and plausibility of the


                                         -6-
explanation for his failure to comply, and the importance of the issues raised.”

Id. at 1120.

      Applying these factors, we conclude that, although it is a close case, the

interests of justice exception applies and allows us to review Mr. Broadus’s

appeal. Mr. Broadus attempted to comply with the rule requiring timely objection

by promptly filing a motion for an extension of time in which to object after he

received a copy of the magistrate judge’s Report and Recommendation. Although

his motion was procedurally inadequate, he did not learn of that inadequacy until

after the deadline for filing objections had passed. Moreover, that delay in

learning of the inadequacy of his motion was not his fault: the district court first

sent a copy of Order #1 addressed in Mr. Broadus’s Muslim name, which the

prison refused to accept even though he apparently had legally changed his name; 5

when the district court then used Mr. Broadus’s birth name, it sent the mail to the

wrong address, even though Mr. Broadus had submitted a change of address. This

case is thus different from Theede v. United States Department of Labor, where

the plaintiff was the source of a mailing problem because he “submitted no less

than five different zip codes for the same street address, without ever formally


      5
       We also note that the district court addressed the copy of Order #1 solely
in Mr. Broadus’s Muslim name even though mail had already three times been
returned as undeliverable when so addressed. In fact, at least one time the court
had solved the problem by re-mailing the correspondence using Mr. Broadus’s
birth name.

                                         -7-
advising the court of any change of address or address correction.” 172 F.3d

1262, 1268 (10th Cir. 1999).

      Furthermore, Mr. Broadus’s motion for an extension of time was apparently

made in good faith, as shown by the fact that Mr. Broadus did ultimately prepare

and seek to file objections to the magistrate judge’s findings and

recommendations. Although when he received no response to his motion Mr.

Broadus would have been better served by contacting the court or by filing his

objections prior to the deadline, his status as a pro se prisoner makes failure to do

so excusable in this case.

      On balance, we conclude that the interests of justice weigh in favor of our

review of Mr. Broadus’s claims and that he has thus not waived his right to

appeal the district court’s decision.

      B. Merits on appeal

      Mr. Broadus requests on appeal that we remand this case for the district

court to evaluate his objections to the magistrate judge’s Report and

Recommendation in the first instance. However, we have before us Mr.

Broadus’s objections to the magistrate judge’s Report and Recommendation, and

both parties have addressed the merits in their appellate briefs. Because we see

no need to remand to the district court, we therefore address the merits of Mr.

Broadus’s claims.


                                        -8-
             1. Dismissal for failure to effect service of process

      The district court dismissed the action as to several defendants due to Mr.

Broadus’s failure to timely serve them with process. Mr. Broadus does not appeal

that dismissal; 6 thus we affirm the dismissal without prejudice as to defendants

Delgado, Bryant, Shoemaker, and Green.

             2. Dismissal for failure to exhaust administrative remedies

      The district court also dismissed the action against defendants CCA and

Liles for failure to exhaust administrative remedies. Reviewing the dismissal de

novo, Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002), and construing

Mr. Broadus’s pleadings liberally, see Haines v. Kerner, 404 U.S. 519, 520–21

(1972), we affirm the dismissal.

      The Prison Litigation Reform Act (“PLRA”) states that “[n]o action shall

be brought with respect to prison conditions under section 1983 of this title, or

any other Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a); see also Porter v. Nussle, 534 U.S. 516,

524–25 (2002). We have interpreted this as a “total exhaustion requirement” such

that “the presence of unexhausted claims in [a prisoner]’s complaint require[s] [a]


      6
       In fact, Mr. Broadus himself moved to dismiss those defendants in October
2003, but the district court struck that motion for failure to include a certificate of
mailing.

                                         -9-
district court to dismiss his action in its entirety without prejudice.” Ross v.

County of Bernalillo, 365 F.3d 1181, 1189 (10th Cir. 2004). A prisoner bears the

burden of pleading exhaustion. Steele v. Fed. Bureau of Prisons, 355 F.3d 1204,

1209 (10th Cir. 2003), cert. denied, 543 U.S. 925 (2004). “In the absence of

particularized averments concerning exhaustion showing the nature of the

administrative proceeding and its outcome, the action must be dismissed under

§ 1997e.” Id. at 1211.

      Proper exhaustion in this case would have entailed full compliance with the

prison’s three-step grievance procedures. At each step, if a prisoner does not

receive a satisfactory response, he may proceed to the next step. The first step is

to seek informal resolution by submitting a “request to staff”; the second step is

to submit a written grievance, either by putting it in the “Grievance Mail Box” or

sending it to the “Facility Grievance Officer”; and the third step is to appeal an

unfavorable decision on a grievance to an appropriate reviewing officer. Having

reviewed Mr. Broadus’s claims, we agree that the magistrate judge correctly

concluded that Mr. Broadus failed to fully exhaust the prison grievance

procedures. Although his complaint included documentation showing that he

submitted several requests to staff, there is no indication that he ever properly

filed a written grievance regarding his alleged exposure to environmental tobacco

smoke. Because Mr. Broadus was required to fully exhaust the prison’s


                                         - 10 -
administrative procedures before filing this lawsuit and he failed to do so, we

affirm the dismissal for failure to exhaust. Ross, 365 F.3d at 1189.

                               III. CONCLUSION

      For the foregoing reasons, we AFFIRM dismissal of Mr. Broadus’s

complaint without prejudice. We GRANT Mr. Broadus’s motion to proceed in

forma pauperis on appeal and remind him of his obligation to continue to make

partial payments until his entire fee has been paid.



                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




                                        - 11 -
