Court Opinion: 10th Circuit Court of Appeals Opinion for June 9

The 10th Circuit Court of Appeals

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

Kessman v. Roberts, et al.

In three cases, Bradley Kessman sued various city and county officials based on his arrest and detention in Larimer County Jail. Per the magistrate judge’s recommendation, the district court dismissed the amended complaint in each case. The 10th Circuit Court of Appeals wrote Kessman appealed, but he waived appellate review of the dismissals because he didn’t object to the magistrate judge’s recommendations. The 10th Circuit panel also disagreed with his arguments the district court should’ve appointed counsel to represent him and it should’ve granted Kessman post-judgment motions.

After concluding that the amended complaints didn’t comply with Federal Rule of Civil Procedure 8, the magistrate judge recommended the district court dismiss them. The magistrate warned Kessman his failure to timely object to the recommendations could bar him from appealing findings or conclusions adopted by the district court and Kessman didn’t object. The district court adopted the recommendations and dismissed the amended complaints. In each case, Kessman moved for appointed counsel. The district court denied the motions for counsel as moot after deciding to dismiss the amended complaints.

After the district court entered judgment, Kessman filed motions titled “motion to address all evidence” and “motion for relief from damages sustained.” The district court treated the motions as arising under Rule 59(e), and denied them after concluding Kessman failed to provide any valid reason to reconsider and vacate the judgment.

The 10th Circuit concluded Kessman waived his appellate review of the district court’s decisions to dismiss his amended complaints. According to the firm-waiver rule, a party who doesn’t object to a magistrate judge’s recommendation “waives appellate review of both factual and legal questions.” The rule has two exceptions. First, it doesn’t apply if a pro se litigant hasn’t been advised of the objection deadline and the consequences of failing to object. Second, discretion may be exercised to overlook the rule if the interests of justice require review.

According to the 10th Circuit, the first exception didn’t apply here. They then turned to the second exception and considered the interests of justice. Several factors helped the 10th Circuit to evaluate those interests, including “a pro se litigant’s effort to comply, the force and plausibility of the explanation for his failure to comply, and the importance of the issues raised.” 

According to the opinion, assessing the importance of the issues “is similar to reviewing for plain error.”

Applying these factors, the 10th Circuit concluded reviewing the merits wouldn’t further the interests of justice. That court directed Kessman to explain why the firm-waiver rule shouldn’t prevent review of the district court’s dismissals. He didn’t claim to have made any effort to file timely objections to the recommendations or offer any explanation for his failures to object, the 10th Circuit noted. And his conclusory statements about the merits of his underlying claims didn’t show anything resembling plain error in the district court’s decisions.

Kessman argued the district court should’ve appointed counsel to represent him and should’ve granted his post-judgment motions. The firm-waiver rule posed no obstacle for these arguments because the magistrate judge’s recommendations didn’t address the motions to appoint counsel or the post-judgment motions, the 10th Circuit wrote.

Kessman’s motions to appoint counsel stated he had “filed the correct papers to obtain an attorney” and he couldn’t afford one on his own. His motions otherwise discussed the merits of his claims. Considering the reasons supporting his motions for counsel, the 10th Circuit saw no error in the district court denying the motions as moot after.

The 10th Circuit also agreed with the district court denying the post-judgment motions. “Rule 59(e) motions may be granted when the court has misapprehended the facts, a party’s position, or the controlling law.” Kessman didn’t show that any of these circumstances existed.

The 10th Circuit affirmed the district court’s judgments and denied Kessman’s motions to proceed without prepaying costs or fees because he didn’t present “a reasoned, nonfrivolous argument on the law and facts.

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