Vianez v. District Court of Oklahoma et al

Filing 9

ORDER re 6 Order Adopting Report and Recommendation. The deadline for filing an objection was February 18, 2015, no objection was filed, therefore the Court declines to apply the interest of justice exception to this case. Because his objection is not timely, Plaintiff has waived de novo review by this Court, as more fully set out. Signed by Honorable David L. Russell on 4/22/15. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JUAN VIANEZ,

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Plaintiff,
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v.
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DISTRICT COURT OF
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OKLAHOMA BUREAU OF
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PRISONS (sued as OK) (F.D.C.) and )
OKLAHOMA (U.S.P./E.D.C.)
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Case No. 13-cv-127-GKF-FHM,
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Defendants.
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Case No. CIV-15-75-R

ORDER
Before the Court is Plaintiff’s objection to the Report and Recommendation of
United States Magistrate Judge Suzanne Mitchell. Doc. No. 8. The deadline for filing an
objection was February 18, 2015. Doc. No. 4, at 4. On March 30, the Court entered an
Order adopting the Report and Recommendation because Plaintiff, a pro se litigant, had
not filed an objection by the deadline or sought an extension of time in which to object.
Doc. No. 6. The Court applies a “firm waiver rule,” which holds “that a party’s
objections to the magistrate judge’s report and recommendation must be both timely and
specific to preserve an issue for de novo review by the district court.” United States v.
One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). But the waiver rule does
not apply when “the interests of justice so dictate.” Id. (quoting Moore v. United States,
950 F.2d 656, 659 (10th Cir. 1991)).

In determining whether the interests of justice exception applies, the Court
considers the “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.” MoralesFernandez v. I.N.S., 418 F.3d 1116, 1120 (10th Cir. 2005). The substance of Plaintiff’s
claim does not support applying this exception because it is unclear how Defendants have
breached a contract, as Plaintiff alleges in his complaint, or what Plaintiff means when he
alleges that “defendants have violated the summons as well as complaint/oral hearing
(A)(2).” Doc. No. 1.
The Court is also not persuaded by his explanation for his failure to file a timely
objection. He states that he is late because he has “no access to a law library” and “he
only gets 2 hr. in small room with only one book (Black’s law dictionary).” Doc. No. 8.
But Plaintiff was still able to file a “Declaration of In Forma Pauperis” in this case,
written on February 2. Doc. No. 5. He was also able to file three documents in a case in
the U.S. District Court for the Western District of Washington that he wrote on February
4 and February 9, two of which contain citations to cases, even though that court declared
him a vexatious litigant on February 2 and ordered that no action be taken on any
document filed that challenges his convictions in that District. In re: Juan Vianez, Case
No. 3:15-mc-05000-RJB, Doc. Nos. 3, 5-7.1 These filings demonstrate that Plaintiff, at
the very least, had the opportunity to request an extension of time in which to object, but

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See FED. R. EVID. 201; United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007) (“[W]e may
exercise our discretion to take judicial notice of publicly-filed records in our court and certain other courts
concerning matters that bear directly upon the disposition of the case at hand.” (citations omitted)).
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chose instead to file documents in a case in which the court will likely take no further
action.
The Court declines to apply the interests of justice exception to this case. Because
his objection is not timely, Plaintiff has waived de novo review by this Court.
IT IS SO ORDERED this 22nd day of April, 2015.

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