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Coutinho-Silva v. United States
Anderson Jose Coutinho-Silva is a federal prisoner in Florence, Colorado. He alleged a correctional officer sexually assaulted him and another correctional officer threatened to kill him.
Coutinho-Silva’s original complaint claimed relief under the Federal Tort Claims Act. The district court ordered him to file an amended complaint that adequately alleged an FTCA claim and stated his compliance with the FTCA’s notice requirement. Coutinho-Silva filed an amended complaint alleging the first officer who allegedly sexually assaulted him violated his Eighth Amendment rights, citing 31 U.S.C. 3723 as the basis for the district court’s jurisdiction.
The district court referred the matter to a magistrate judge, who recommended the district court hold that neither 3723 nor the FTCA provided jurisdiction over Coutinho-Silva’s complaint and to dismiss the complaint for lack of subject-matter jurisdiction and deny leave to amend. The magistrate judge also recommended that even if the district court liberally Coutinho-Silva’s complaint, it should find the U.S. Supreme Court’s 1971 decision in Bivens v. Six Unknown Named Agents doesn’t provide relief for a claim of sexual assault. The recommendation included a notice that a failure to file specific objections within 14 days may bar the party from appealing findings and conclusions adopted by the district court. Any objection was due by Sept. 19, 2022.
On Sept. 16, Coutinho-Silva filed a single page of the court-approved complaint form to the district court requesting jurisdiction under 28 U.S.C. 1915 to “fix a mistake.” He filed an untimely objection Sept. 30.
The district court accepted and adopted the magistrate judge’s recommendation, and the court noted Coutinho-Silva’s Sept. 16 filing didn’t indicate an objection and that the Sept. 30 objection was untimely. The district court dismissed the action without prejudice for lack of subject-matter jurisdiction.
Coutinho-Silva appealed. The 10th Circuit Court of Appeals ordered Coutinho-Silva to show cause why he hasn’t waived his right to appellate review by failing to file timely objections. Coutinho-Silva said he made a mistake because he doesn’t have the assistance of counsel and didn’t argue the district court erred in finding he waived review nor that the 10th Circuit should decline to apply the firm waiver rule.
The 10th Circuit ruled that Coutinho-Silva waived his right to appellate review by failing to timely object to the magistrate’s recommendation, dismissed his appeal and denied his motion to proceed in forma pauperis.