Zamora v. U.S. Department of Health and Human Services ( 2021 )


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  • Appellate Case: 21-1338     Document: 010110624980       Date Filed: 12/28/2021    Page: 1
    FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                          Tenth Circuit
    FOR THE TENTH CIRCUIT                        December 28, 2021
    _________________________________
    Christopher M. Wolpert
    Clerk of Court
    LOUIS MICHAEL ZAMORA,
    Plaintiff - Appellant,
    v.                                                          No. 21-1338
    (D.C. No. 1:21-CV-01710-LTB-GPG)
    U.S. DEPARTMENT OF HEALTH AND                                (D. Colo.)
    HUMAN SERVICES,
    Defendant - Appellee.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
    _________________________________
    Proceeding pro se,1 Plaintiff-Appellant Louis Michael Zamora appeals the
    district court’s dismissal of his complaint. Exercising jurisdiction under 
    28 U.S.C. § 1291
    , we affirm.
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially help determine this appeal. See
    Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding precedent,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. It
    may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
    and 10th Cir. R. 32.1.
    1
    We liberally construe Zamora’s filings, but we will not serve as his advocate.
    James v. Wadas, 
    724 F.3d 1312
    , 1315 (10th Cir. 2013).
    Appellate Case: 21-1338     Document: 010110624980        Date Filed: 12/28/2021     Page: 2
    BACKGROUND
    In his original complaint, Zamora sued the United States Department of Health
    and Human Services,2 apparently asserting a claim under the Federal Tort Claims
    Act. A magistrate judge concluded that Zamora’s complaint did not satisfy Federal
    Rule of Civil Procedure 8. So it directed him to amend his complaint. Though the
    magistrate judge gave Zamora several opportunities to amend,3 his amended
    complaints remained deficient. Thus, the magistrate judge recommended that the
    district court dismiss Zamora’s last-amended complaint for failing to meet Rule 8’s
    pleading requirements. The recommendation advised Zamora that he had fourteen
    days to file written objections to the district court and that failure to object may bar
    him from appealing the magistrate judge’s findings. Zamora did not object.
    The district court adopted the magistrate judge’s recommendation and
    dismissed the complaint without prejudice. It also denied Zamora’s motion to
    proceed in forma pauperis on appeal, certifying under 
    28 U.S.C. § 1915
    (a)(3) that his
    appeal would not be in good faith. Zamora now appeals.
    DISCUSSION
    We first consider whether Zamora has waived his right to appellate review.
    Our circuit applies a firm-waiver rule. Morales-Fernandez v. I.N.S., 
    418 F.3d 1116
    ,
    2
    The original complaint named the Department’s paralegal specialist, Heather
    Hill, as a defendant. But Zamora later dropped her as a named defendant.
    3
    In his amended complaints, Zamora named the Department’s former
    secretary, Alex Azar, as a defendant. He also added claims alleging the Department’s
    negligent and wrongful acts of omissions and antitrust violations.
    2
    Appellate Case: 21-1338     Document: 010110624980       Date Filed: 12/28/2021      Page: 3
    1119 (10th Cir. 2005). Under that rule, a party who fails to timely object to a
    magistrate judge’s recommendations waives appellate review. 
    Id.
     The rule has two
    exceptions: (1) when a pro se litigant is unadvised that he must object or waive the
    objection; and (2) when the “interests of justice” require review. 
    Id.
     Factors relevant
    to the second exception include the party’s efforts to comply with the objection
    requirement, the party’s explanation for failing to comply, and the “importance of the
    issues raised.” 
    Id. at 1120
    .
    We ordered Zamora to show cause as to why he did not waive his right to
    appellate review when he failed to object to the magistrate judge’s recommendation.
    He responded by arguing that he did not “recall[] waiving his rights to the appellate
    review,” and he requested appellate review in the “interests of justice.” Opening Br.
    at 3.
    Neither exception to the firm-waiver rule fits here. First, Zamora had adequate
    notice—the magistrate judge’s recommendation informed Zamora that he was
    required to object within fourteen days and that failure to do so may waive appellate
    review. And second, the “interests of justice” don’t require review. Zamora made no
    effort to challenge the magistrate judge’s recommendation, failed to justify that
    failure, and his appellate brief doesn’t raise issues of such importance to overcome
    these other factors. See Henderson v. Cargill Packing Plant, 780 F. App’x 674, 675
    (10th Cir. 2019).
    Thus, Zamora has waived his right to appellate review. See Bhomengo v. Hosp.
    Shared Servs. Inc., 543 F. App’x 812, 814 (10th Cir. 2013).
    3
    Appellate Case: 21-1338   Document: 010110624980       Date Filed: 12/28/2021    Page: 4
    CONCLUSION
    Because Zamora has waived his right to appellate review, we dismiss the
    appeal. We also deny his motion to proceed in forma pauperis.4
    Entered for the Court
    Gregory A. Phillips
    Circuit Judge
    4
    We deny Zamora’s motion to proceed in forma pauperis because he has not
    shown a reasoned, non-frivolous argument to support his appeal. See Saleh v. Kimo,
    821 F. App’x 915, 918 (10th Cir. 2020).
    4
    

Document Info

Docket Number: 21-1338

Filed Date: 12/28/2021

Precedential Status: Non-Precedential

Modified Date: 12/28/2021