UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

QUINTERO and KANSAS ADVOCACY AND PROTECTIVE SERVICES, INC., et al.,

Plaintiffs-Appellees,

v.

ENCARNACION, ROCHELLE CHRONISTER, as the SECRETARY OF SOCIAL AND REHABILITATION SERVICES OF KANSAS, and MANI LEE, as the SUPERINTENDENT of LARNED STATE HOSPITAL, et al.,

Defendants-Appellants.	No. 98-3129

(D.C. No. 96-1205-MLB)

(Kansas)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, MAGILL,** and EBEL, Circuit Judges.

At issue in this interlocutory appeal is whether the Eleventh Amendment bars an action by Kansas Advocacy and Protection Services, Inc. (KAPS) against Rochelle Chronister, Secretary of the Department of Social and Rehabilitation Services, and Mani Lee, Superintendent of Larned State Hospital. Because we conclude that defendants failed to object to the portion of the magistrate judge's Report and Recommendations which concluded the Eleventh Amendment does not preclude KAPS's action against Ms. Chronister and Mr. Lee, we dismiss the appeal.

KAPS and Rita Quintero, a former patient at Larned State Hospital, brought suit against numerous state employees, in their individual and official capacities, who were involved with Ms. Quintero's commitment and treatment. Ms. Quintero sought monetary damages for alleged violations of her constitutional rights; KAPS sought prospective injunctive and declaratory relief. Defendants responded by filing a motion to dismiss, asserting inter alia that the Eleventh Amendment barred all of the official capacity actions against them. The case was referred to a magistrate judge who determined Ms. Chronister and Mr. Lee "are the only defendants in a position to carry out injunctive relief," Aplt. App. at 83, and so were amenable to suit notwithstanding the Eleventh Amendment. The magistrate

judge recommended that the official-capacity claims against all the other defendants be dismissed.

The district court set page limits for memoranda seeking review of the magistrate judge's report and required a consolidated brief. Various defendants stated their objections in a memorandum brief several pages short of the page limit. While raising a number of other issues, the only discussion of the Eleventh Amendment in that brief was as follows:

The defendants do not challenge the Report's recommendation in their favor on the Eleventh Amendment bars, but do respectfully reserve their right of response to any briefing of the plaintiffs on this issue.

Id. at 103.1 After considering the parties' objection to the report, the district court adopted the magistrate judge's recommendations on Eleventh Amendment immunity in their entirety. Id. at 125-26. This interlocutory appeal followed. See id. at 171.

"This circuit has adopted a firm waiver rule under which a party who fails to make timely objection to the magistrate's findings and recommendations waives appellate review of both factual and legal questions." Talley v. Hesse, 91 F.3d 1411, 1412 (10th Cir. 1996); see also Frontier Refining Inc. v. Gorman-
Rupp Co., 136 F.3d 695, 706 (10th Cir. 1998); Pippinger v. Rubin, 129 F.3d 519, 533-34 (10th Cir. 1997); Niehaus v. Kansas Bar Assn'n, 793 F.2d 1159, 1164-65 (10th Cir. 1986). There is an exception "when the ends of justice dictate otherwise or when the magistrate's order does not clearly apprise a pro se litigant of the consequences of a failure to object." Talley, 91 F.3d at 1413; see also Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

Ms. Chronister and Mr. Lee failed to object to the magistrate judge's conclusion that the Eleventh Amendment does not preclude actions against them in their official capacities. There is simply nothing in defendants' memorandum brief to the district court to indicate otherwise. Defendants contend that their "brevity" was mandated by the district court's imposition of strict page limits. However, they did not briefly object to this portion of the report, they failed to object at all. Their decision to use only seven of the ten pages allocated to them further undercuts this argument. Surely, they could have fit in a paragraph or two articulating this objection in the extra three pages. Their failure to do so constitutes waiver for the purposes of this interlocutory appeal.2 See Pippinger, 129 F.3d at 533-34.

Having no issue before us, we DISMISS this appeal.3

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge