                                                                                FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                      UNITED STATES COURT OF APPEALS                      January 10, 2012

                                                                        Elisabeth A. Shumaker
                                    TENTH CIRCUIT                           Clerk of Court



 DAVID ROBIN WHITMORE,
                                                            No. 11-6158
        Plaintiff - Appellant,                      (D.C. No. 5:10-CV-00576-M)
                                                           (W.D. Okla.)
 v.

 RONALD HILL, Unit
 Manager/Disciplinary Hearing Officer;
 MARK BOWEN, Deputy Warden;
 RALPH FORD, Captain; DAVID
 MILLER, Warden; BRANDY
 KIRKPATRICK, Disciplinary Hearing
 Investigator; and JOHN ELLINGTON,
 Sergeant/Disciplinary Hearing Officer,

        Defendants - Appellees.


                                 ORDER AND JUDGMENT*


Before LUCERO, EBEL and GORSUCH, Circuit Judges.


      Plaintiff-Appellant David Whitmore, an inmate in the custody of the Oklahoma


      *After examining the briefs and appellate records, 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) and 10th Cir. R. 34.1(G). This 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
Department of Corrections (“ODOC”), sued several prison officials under 42 U.S.C.

§ 1983, alleging they deprived him of due process during a prison disciplinary

proceeding. Because Whitmore is proceeding pro se, we liberally construe his pleadings.

See Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Having jurisdiction under

28 U.S.C. § 1291, we AFFIRM the district court’s decision granting Defendants

summary judgment.1

I. Procedural issues

       Whitmore first asserts that the district court committed several procedural errors.

       A. Conversion of motion to dismiss into summary judgment motion

       Pursuant to Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir. 1978) (per curiam),

the district court ordered prison officials to prepare and file with the court a special report

addressing Whitmore’s claims. Whitmore complains that, by considering that report, the

district court improperly converted Defendants’ motion to dismiss into a summary

judgment motion, without providing Whitmore notice of that conversion. See generally

Gee v. Pacheco, 627 F.3d 1178, 1186-87 (10th Cir. 2010) (addressing conversion of

motion to dismiss into summary judgment motion). But the district court’s order

directing prison officials to prepare and file the special report also informed Whitmore

that, “[i]f Defendants file a motion to dismiss and/or for summary judgment, Plaintiff

must file a response thereto within twenty-one (21) days from the date the motion was


1
 The district court granted Whitmore permission to pursue this appeal in forma pauperis.
See 28 U.S.C. § 1915(a).
                                               2
filed.” (R. v.1 at 14 ¶ 4.) Defendants did file such a motion and they clearly titled it a

“Motion To Dismiss/Motion For Summary Judgment.” Under these circumstances,

Whitmore was on notice that, procedurally, he had to defend against summary judgment.

See Marquez v. Cable One, Inc., 463 F.3d 1118, 1121 (10th Cir. 2006).

       B. Denial of Whitmore’s default judgment motions

       Defendants’ first responsive pleading, the motion to dismiss/motion for summary

judgment, mistakenly indicated that only three of the six named Defendants joined that

motion. In light of that, Whitmore moved for entry of a default judgment against the

other three Defendants. The district court did not abuse its discretion, see Bixler v.

Foster, 596 F.3d 751, 761 (10th Cir. 2010), in denying Whitmore a default judgment and

in permitting Defendants, instead, to amend their motion to dismiss/for summary

judgment to include all six named Defendants. See Willner v. Budig, 848 F.2d 1032,

1035 (10th Cir. 1988) (per curiam) (upholding denial of default judgment where court

permitted defendants to amend answer to add name of defendant omitted from original

answer); see also Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1491 (10th Cir. 1995).

       Whitmore further asserts that he did not receive either Defendants’ original or

amended motion to dismiss/for summary judgment. For these reasons, he filed two

additional motions for default judgment. The district court did not abuse its discretion,

see Bixler, 596 F.3d at 761, in denying default judgment because Defendants did timely

file their motions to dismiss/for summary judgment with the court.


                                              3
II. Whitmore failed to object in a timely manner to the magistrate judge’s
recommendation

      As previously mentioned, Whitmore asserted he never received Defendants’

original motion to dismiss/for summary judgment. In light of that, when the district court

granted Defendants’ motion to amend their motion to dismiss/for summary judgment, the

court further directed Defendants to file their amended motion no later than February 28,

2011, and to send Whitmore a copy of their original motion as well as their new amended

motion. The court further directed Whitmore to file a response to Defendants’ motions to

dismiss/for summary judgment “within twenty-one days of filing.” (R. v.1 at 50.)

      Defendants obtained an extension of time and ultimately filed their amended

motion with the court on March 1, 2011. Attached to that motion, Defendants indicated

that they had mailed a copy of that motion to Whitmore on the same date. Although

Whitmore received a copy of the court’s order, dated March 1, 2011, granting

Defendants’ motion for an extension of time to file their amended motion, he asserts that

he never received Defendants’ amended motion to dismiss/for summary judgment.

      Whitmore, however, did receive the magistrate judge’s report and

recommendation, dated April 26, 2011, which noted that Defendants had filed their

amended motion to dismiss/for summary judgment, but Whitmore had not filed a

response. In his report, the magistrate judge recommended granting Defendants

summary judgment. That report and recommendation also advised Whitmore that he had

to file any objections to the magistrate judge’s report and recommendation by May 16,

                                            4
2011, or “waive[] the right to appellate review of both factual and legal issues contained.”

(Id. at 69.) Affording Whitmore the benefit of the prison mail rule, see Harris v.

Dinwiddie, 642 F.3d 902, 906 n.6 (10th Cir. 2011), he did not file his objections until

May 19, 2011.

          This court has a “firm waiver rule that provides that the failure to make timely

objections to the magistrate’s findings or recommendations waives appellate review of

both factual and legal questions.” Cohen v. Longshore, 621 F.3d 1311, 1317-18 (10th

Cir. 2010). But this waiver rule is not jurisdictional, see Hicks v. Franklin, 546 F.3d

1279, 1283 n.3 (10th Cir. 2008), and the Tenth Circuit has recognized several exceptions

to its applications, Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008). First, this

court will not apply the waiver rule if the district court failed to notify a pro se litigant of

the time he had to file his objections and the consequences for failing to object in a timely

manner. See id. But that exception does not apply here because the magistrate judge’s

report and recommendation clearly gave Whitmore the required notice.

          Second, this court will not apply our firm waiver rule if the interests of justice

warrant overlooking the waiver. See id. at 1237-38. That exception does not apply here,

either.

          In deciding whether the interests of justice warrant overlooking a litigant’s failure

to file timely objections, we consider 1) the litigant’s efforts to comply with the time for

filing objections; 2) the force and plausibility of the litigant’s explanation for why his

objections were late; and 3) the importance of the issues raised. See Casanova v.
                                                 5
Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).

       A. Whitmore’s efforts to comply with the deadline for filing his objections,
       and the force and plausibility of his explanation for why he filed them late

       In his untimely objections, Whitmore does not specifically address why they were

late. But he did assert that he had trouble accessing relevant case law relied upon by the

magistrate judge. Even so, Whitmore still could have filed a timely objection notifying

the court that he had never received Defendants’ amended motion to dismiss/for

summary judgment. See Duffield, 545 F.3d at 1238.

       In his reply brief, Whitmore for the first time asserts that he tried to file a timely

motion for an extension of time to file his objections, but a prison mail room clerk

prevented him from doing so. The Court notes that Whitmore was able to file motions

for entry of default and for default judgment during this same time period. Whitmore

further states that he first discovered that the prison did not mail his motion for an

extension to the court when he filed his notice of appeal in this case and received a copy

of the district court’s docket sheet. We will not address this issue, which was available to

Whitmore when he filed his opening brief, but which he failed to raise until his reply

brief. See Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011).

       B. Importance of the issues Whitmore raises on appeal

       In considering “whether the importance of the issues raised might trigger the

‘interests of justice’ exception, we have said that, in many respects, the interests of justice

analysis we developed, which expressly includes review of a litigant’s unobjected-to

                                               6
substantive claims on the merits, is similar to reviewing for plain error.” Duffield, 545

F.3d at 1238 (internal quotation marks omitted). Therefore, Whitmore “would have to

show (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.”

Id. (internal quotation marks omitted).

       Whitmore cannot make that showing here. To the extent he is challenging his first

prison disciplinary conviction, Whitmore received due process when that conviction was

overturned through the review process provided by Oklahoma. See Ragan v. Lynch, 113

F.3d 875, 876-77 (8th Cir. 1997); Harper v. Lee, 938 F.2d 104, 105 (8th Cir. 1991); see

also Horne v. Coughlin, 155 F.3d 26, 31 (2d Cir. 1998) (holding first disciplinary hearing

“became a nullity” where it was overturned and “all the penalties” the inmate suffered

resulted from a second hearing). To the extent he is challenging the second prison

conviction that resulted from his rehearing, that conviction has never been invalidated.

Therefore, Edwards v. Balisok, 520 U.S. 641, 643, 648 (1997), precludes Whitmore’s

§ 1983 claims challenging that conviction.

III. Conclusion

       Because Whitmore has failed to establish that his case falls within one of these

exceptions, we apply our firm waiver rule here and AFFIRM the district court’s decision

granting Defendants summary judgment. We decline to impose a strike. See 28 U.S.C.

§ 1915(g). But we remind Whitmore that he remains obligated to make partial payments

until the filing fee he owes in this case is paid in full.
                                                7
The mandate shall issue forthwith.



                                     ENTERED FOR THE COURT



                                     David M. Ebel
                                     Circuit Judge




                                       8
