Opinion
Civil Action 20-cv-03495-PAB-STV
04-13-2023
DARUS WILKINS, Plaintiff, v. JOHN PALOMINO, CHRIS CHAVEZ, LIEUTENANT KENNEDY, NITA HUNT, BRENT PIERCE, LUKE HOLLAND, DR. JONATHAN THIELY, MS. DILLMAN, JANE GILDEN, and MR. SMITH, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK, MAGISTRATE JUDGE
This matter comes before the Court on Defendant Dr. Thiele's Renewed Motion to Dismiss Plaintiff's Third Amended Complaint Under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) [#205] (the “Motion”). The Motion has been referred to this Court. [#207] This Court has carefully considered the Motion and related briefing, the case file and the applicable case law, and has determined that oral argument would not materially assist in the disposition of the Motion. For the following reasons, the Court respectfully RECOMMENDS that the Motion be GRANTED.
The facts are drawn from the allegations in Plaintiff's Third Amended Complaint (the “Complaint”) [#104], which must be taken as true when considering a motion to dismiss. See Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir. 2011)). The Court only recites facts relevant to the instant Motion and the claims brought against Dr. Thiele.
At all times relevant to the claims brought against Dr. Thiele,Plaintiff was a convicted inmate serving a twenty-four year sentence at Colorado Department of Corrections (“CDOC”) facilities. [#104 at ¶ 22] On July 25, 2019, Plaintiff sustained injuries when officers at the Bent County Correctional Facility (“BCCF”) allegedly used excessive force in obtaining a D.N.A. mouth swab from Plaintiff. [See generally id.] To conduct the D.N.A. swab, the officers relied upon a court order that authorized the swab. [Id. at ¶ 80] But, by the time the officers conducted the swab, that court order had expired. [Id.] A CDOC panel reviewed the incident and, on September 30, 2019, issued a report concluding that “no checks and balances were in place to ensure a court order for a D.N.A. test was valid, nor was the Office of Inspector General and CDOC Legal Services used as resources.” [Id. at ¶ 81; see also ¶ 126]
While the Complaint and case caption refer to “Dr. Thiely” [See, e.g., #104 at ¶ 7], the Motion and associated briefing refer to “Dr. Thiele” [##205; 210; 212]. The Court adopts the latter spelling, as used in both parties' briefing.
At some point after the July 25 incident, Plaintiff was transported to the Colorado Territorial Correctional Facility (“CTCF”), allegedly in retaliation for reporting the excessive force incident. [Id. at ¶ 102] Dr. Thiele is a psychiatrist at CTCF. [Id. at ¶ 7] Dr. Thiele has been “directly involved in [Plaintiff's] mental health treatment” and, according to the Complaint, “has been negligent in the proper treatment of [Plaintiff's] PTSD, night terrors, and anxiety issues” resulting from the July 25 incident. [Id.] The Complaint alleges that Dr. Thiele initially failed to acknowledge that the officers used excessive force or that Plaintiff suffered night terrors or PTSD as a result of the incident [Id. at ¶¶ 7, 118] He only changed his opinion after the release of the September 30 CDOC panel's report. [Id. at ¶ 118]
Plaintiff initiated this action on November 25, 2020. [#1] The currently operative Third Amended Complaint brings an Eighth Amendment deliberate indifference claim and a state court negligence claim against Dr. Thiele. [#104 at ¶¶ 1-45, 108-18] On February 6, 2023, Dr. Thiele filed the instant Motion, seeking to dismiss both claims. [#205] Plaintiff has responded to the Motion [#210] and Dr. Thiele has replied [#212].
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a complaint for “lack of subject-matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” In deciding a motion under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . . and view these allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). Plausibility refers “to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at 556). The ultimate duty of the court is to “determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
“A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, at 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). “The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3. The court, however, cannot be a pro se litigant's advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
III. ANALYSIS
As indicated above, Plaintiff alleges the following claims against Dr. Thiele: (1) Claim One alleging negligence, and (2) Claim Nine alleging deliberate indifference. Dr. Thiele argues: (1) Plaintiff's negligence claim is barred by the Colorado Governmental Immunity Act (“CGIA”), (2) Plaintiff fails to state a negligence claim against Dr. Thiele, (3) Plaintiff fails to state a deliberate indifference claim, (4) Dr. Thiele is not the proper party to effectuate Plaintiff's requested injunctive relief,(5) and Dr. Thiele is entitled to qualified immunity. [#205] The Court first addresses Plaintiff's deliberate indifference claim, then turns to Plaintiff's negligence claim.
Plaintiff seeks to order all Defendants to: (1) immediately arrange for Plaintiff's physical therapy or follow-up medical treatment with a medical practitioner with expertise in the treatment and restoration and function of the spinal and nervous system, (2) carry out without delay the treatment directed by that medical practitioner, (3) provide Plaintiff with a psychological practitioner with expertise in depression and PTSD, and (4) carry out without delay the treatment directed by such psychological practitioner. [#104 at ¶ 135] The Court agrees with Defendant that Plaintiff has failed to plausibly allege that Mr. Thiele, in his individual capacity, has the authority to provide the relief requestedi.e., order specialized consultation or provide such specialized treatment. [#205 at 11] Plaintiff's only response to this argument is that “[w]hen . . . prison authorities prevent an inmate from receiving recommended treatment for serious medical needs or deny access to a physician capable of evaluating the need for such treatment, the constitution has been violated.” [#210 at 4] But the Complaint does not allege that Dr. Thiele prevented Plaintiff from such specialized treatment, only (and in conclusory terms) that his own treatment of Plaintiff was deficient. Thus, Plaintiff's claims for injunctive relief against Dr. Thiele in his individual capacity fail. To the extent Plaintiff seeks injunctive relief against Dr. Thiele in his official capacity, that claim is redundant of the official capacity claims brought against other CDOC officials, many of whom have answered rather than filing a motion to dismiss. See, e.g., Frey v. Reams, No. 17cv00669-LTB-MJW, 2018 WL 582400, at *6 (D. Colo. Jan. 29, 2018) (finding that plaintiff's official capacity claim against an employee of a sheriff's department was duplicative of claims against the sheriff in his official capacity, because “[a]n official capacity suit is a way of pleading an action against an agent or officer's employer,” which for both individual defendants was the sheriff's office); Toevs v. Quinn, No. 15-CV-02838-RBJ, 2017 WL 1055314, at *10 n.11 (D. Colo. Mar. 21, 2017) (finding official capacity claims against various officers “duplicative” of official capacity claims asserted against the sheriff); Bailey v. Franklin, No. 20-CV-362-TCK-SH, 2021 WL 2345356, at *6 n.1 (N.D. Okla. June 8, 2021) (finding official capacity claim against police chief “redundant” of official capacity claims asserted against officers). The Court thus respectfully RECOMMENDS that Plaintiff's claims for injunctive relief be DISMISSED.
A. Deliberate Indifference
Plaintiff's Ninth Claim asserts a claim against Dr. Thiele for deliberate indifference in violation of the Eighth Amendment. [#104 at ¶¶ 108-18] A prison official's deliberate indifference to an inmate's serious medical needs violates the Eighth Amendment. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). In the prison medical context, “deliberate indifference is present when prison officials intentionally deny or delay access to necessary medical treatment for non-medical reasons.” Hammond v. Crum, No. 16-CV-0069-GPG, 2016 WL 153224, at *2 (D. Colo. Jan. 13, 2016) (citing Estelle, 429 U.S. at 104-05).
“‘Deliberate indifference' involves both an objective and a subjective component.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000). “The objective component is met if the deprivation is ‘sufficiently serious.'” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 834 (1994)). “[A] medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (quotation omitted). “The subjective component is met if a prison official ‘knows of and disregards an excessive risk to inmate health or safety.'” Sealock, 218 F.3d at 1209 (quoting Farmer, 511 U.S. at 837). Mere negligence, however, is not sufficient. Farmer, 511 U.S. at 835. Rather, “[t]he subjective component is akin to ‘recklessness in the criminal law,' where, to act recklessly, a ‘person must “consciously disregard” a substantial risk of serious harm.'” Self v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quoting Farmer, 511 U.S. at 837, 839). In other words, “the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [s]he must also draw the inference.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (quoting Farmer, 511 U.S. at 837) (alteration in original); see also id. at 753 (stating that the subjective component inquiry is: “were the symptoms such that a prison employee knew the risk to the prisoner and chose (recklessly) to disregard it?”).
Dr. Thiele argues that he is entitled to qualified immunity on Plaintiff's deliberate indifference claim. [#205 at 12-13] “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). If a defendant asserts qualified immunity, “the onus is on the plaintiff to demonstrate ‘(1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct.'” Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)). “If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity.” Gross v. Pirtle, 245 F.3d 1151, 1156 (10th Cir. 2001).
Courts have “discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236. In Pearson, the Supreme Court acknowledged that, in certain cases, “a court will rather quickly and easily decide that there was no violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all.” Id. at 239. Because the Court finds this principle applicable in evaluating Plaintiff's deliberate indifference claim, the Court does not address the first prong of the qualified immunity analysis-i.e., whether Plaintiff has sufficiently alleged a constitutional violation by Dr. Thiele.
The requirement that the right be clearly established presents a “demanding standard” intended to ensure the protection of “all but the plainly incompetent or those who knowingly violate the law.” District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In determining whether the constitutional right was clearly established at the time of the misconduct, the Tenth Circuit has explained:
A clearly established right is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right. Although plaintiffs can overcome a qualified-immunity defense without a favorable case directly on point, existing precedent must have placed the statutory or constitutional question beyond debate. The dispositive question is whether the violative nature of the particular conduct is clearly established.Aldaba v. Pickens, 844 F.3d 870, 877 (10th Cir. 2016) (quotations and citations omitted). The Supreme Court has “not yet decided what precedents-other than [its] own-qualify as controlling authority for purposes of qualified immunity.” Wesby, 138 S.Ct. at 591 n.8. The Tenth Circuit, however, has stated that “[o]rdinarily this standard requires either that there is a Supreme Court or Tenth Circuit decision on point, or that the ‘clearly established weight of authority from other courts [has] found the law to be as the plaintiff maintains.'” Patel v. Hall, 849 F.3d 970, 980 (10th Cir. 2017) (quoting Klen v. City of Loveland, 661 F.3d 498, 511 (10th Cir. 2011)).
Plaintiff cites to no case by the Supreme Court or the Tenth Circuit that would clearly establish that it was a violation of the Eighth Amendment for Dr. Thiele to not believe Plaintiff's excessive force allegations or that Plaintiff was experiencing mental health consequences of that alleged excessive force. [#210] Nor has the Court identified any such case. Neither has the Court determined that the clearly established weight of authority from other courts has found the law to be as the plaintiff maintains. Plaintiff has therefore failed to carry his burden to show that Dr. Thiele violated clearly established law. Accordingly, the Court respectfully RECOMMENDS that the Motion be GRANTED with respect to Plaintiff's deliberate indifference claim against Dr. Thiele and that the deliberate indifference claim be DISMISSED to the extent it seeks monetary damages.
Plaintiff cites merely to Pearson for the proposition that “[t]he judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances of the particular case at hand.” [#210 at 5]
As another court in this district has recognized:
The Court is mindful that the Tenth Circuit's admonition that a plaintiff bears the burden of citing to the Court clearly established law, see Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010), typically involves plaintiffs who are represented by counsel. See, e.g., Gutierrez v. Cobos, 841 F.3d 895, 903 (10th Cir. 2016); Rojas v. Anderson, 727 F.3d 1000, 1005-06 (10th Cir. 2013); Smith v. McCord, 707 F.3d 1161, 1162 (10th Cir. 2013). However, the Tenth Circuit has reversed a trial court's dismissal of a pro se plaintiff's excessive force claim-where the trial court found the plaintiff had failed to identify a case demonstrating his right was clearly established-by itself pointing to a Supreme Court case sufficiently similar to the facts alleged and finding the plaintiff's right was clearly established. See Ali v. Duboise, 763 Fed.Appx. 645, 651-52 (10th Cir. 2019).Brandt v. Crone, No. 19-CV-03103-MEH, 2021 WL 681441, at *5 (D. Colo. Feb. 22, 2021), aff'd, No. 21-1093, 2022 WL 898761 (10th Cir. Mar. 28, 2022). “Therefore, the Court has conducted an additional inquiry to determine whether the relevant law was clearly established as of the dates of these events.” Id.
B. Negligence
Plaintiff's First Claim asserts a claim against Dr. Thiele for state law negligence. [#104 at ¶¶ 1-45] Dr. Thiele moves to dismiss pursuant to the CGIA, Colo. Rev. Stat. § 24-10-101, et seq. [#205 at 4-6] With limited exception, the CGIA bars tort claims against public employees. Colo. Rev. Stat. § 24-10-118 (setting forth the limitation on tort actions against public employees). This protection extends to Members of the CDOC Panel of Medical Consultants “for all activities performed within the course and scope of said member's responsibilities to the [CDOC].” Id. at § 17-1-103(3)(d). Dr. Thiele is a Member of the CDOC Panel of Medical Consultants. [#106] And the Complaint alleges that Dr. Thiele's treatment of Plaintiff occurred while performing his duties at CTCF. [#104 at ¶ 7] Dr. Thiele is thus covered by the CGIA.
Because the CGIA impacts this Court's jurisdiction, the Court may appropriately consider extrinsic documents. Loma v. City and Cnty. of Denver, 21-cv-02214-NYW-KLM, 2023 WL 2574377, at *6-7 (D. Colo. Mar. 20, 2023). Plaintiff does not argue that Dr. Thiele falls outside the scope of the CGIA, only that Dr. Thiele's actions fall within an exception to the CGIA. [#210 at 2-3]
Because Dr. Thiele's CGIA coverage implicates this Court's subject matter jurisdiction, Plaintiff bears the burden of establishing that Dr. Thiele's actions fall outside the protections of the CGIA. Williams v. City of Arvada, 21-cv-02236-NYW, 2022 WL 1102532, at *14 (D. Colo. Apr. 13, 2022); L.J. v. Carricato, 413 P.3d 1280, 1288 (Colo.App. 2018); see also Glasser v. King, 721 Fed.Appx. 766, 770 (10th Cir. 2018) (stating that CGIA immunity impacts a court's subject matter jurisdiction). Plaintiff argues that Dr. Thiele is not protected by CGIA immunity because Colorado has waived sovereign immunity for injuries resulting from the operation of any correctional facility.[#210 at 2 3 (citing Colo. Rev. Stat. § 24-10-106(1)(b))] The CGIA provides that “no [immunity for public employees] may be asserted in an action for injuries resulting from the circumstances specified in section 24-10-106(1).” Colo. Rev. Stat. § 24-10-118(2)(a). And Section 24-10-106(1)(b), in turn, waives sovereign immunity for injuries resulting from the operation of a correctional facility, as defined in Section 17-1-102. And Section 17-1-102(1.7) defines “[c]orrectional facility” as “any facility under the supervision of the [CDOC] in which persons are or may be lawfully held in custody as a result of conviction of a crime.” Thus, at first blush, Plaintiff would appear to have found an exception to CGIA immunity.
This is Plaintiff's only argument against Dr. Thiele's immunity under the CGIA. [#210 at 2-3] The Court also notes that Plaintiff has failed to meet his burden to plead facts sufficient to allege that Dr. Thiele's conduct was “willful and wanton,” so as to take his conduct outside the protection of the CGIA. Colo. Rev. Stat. § 24-10-118(1), (2)(a); see also Williams, 2022 WL 1102532, at *14. Plaintiff alleges only that Dr. Thiele did not believe that Plaintiff had night terrors or PTSD issues and was negligent in treating Plaintiff. [#104 at ¶¶ 7, 118] Plaintiff fails to allege that Dr. Thiele “act[ed] not only unlawfully, but with the intent to injure, or in conscious disregard of the probability that his acts would result in injury to the plaintiff.” See Pittman v. City of Aurora, No. 19-cv-02209-PAB-NRN, 2020 WL 508946, at *7 (D. Colo. Jan. 31, 2020) (quoting Feltman v. Europe, No. 18-cv-3113-WJM-STV, 2019 WL 6215445, at *8 (D. Colo. Nov. 21, 2019)).
“Plaintiff overlooks, however, a key carve out to [Section 24-10-106(1)(b)].” Tafoya v. Limon Corr. Facility, No. 20-cv-0768-WJM-NRN, 2020 WL 6565230, at *3 (D. Colo. Nov. 9, 2020). Specifically, Section 24-10-106(1)(b)'s waiver of sovereign immunity is limited by Section 24-10-106(1.5)(b). That Section provides that the waiver of sovereign immunity in Section 24-10-106(1)(b) “does not apply to claimants who have been convicted of a crime and incarcerated in a correctional facility or jail pursuant to such conviction.” And the Tenth Circuit has held that Section 24-10-106(1.5)(b) applies to actions brought by convicted inmates against public employees. Glasser, 721 Fed.Appx. at 770; see also Cisneros v. Elder, 506 P.3d 828, 835 (Colo. 2022) (“[W]e conclude that section 24-10-106(1.5)(b) waives immunity both for intentional torts and for acts of negligence resulting from the operation of a jail for claimants who are incarcerated but not convicted.”). Thus, because there is no dispute that Plaintiff was a convicted inmate at the time of Dr. Thiele's alleged negligence [#104 at ¶ 22], Plaintiff “may not avail himself of the waiver of immunity set forth in [Section 24-10-106(1)(b)].” Tafoya, 2020 WL 6565230, at *3. Accordingly, the Court respectfully RECOMMENDS that Plaintiff's negligence claim for monetary damages be DISMISSED for lack of subject matter jurisdiction.
Once again, Dr. Thiele, as a Member of the CDOC Panel of Medical Consultants, receives all of the protections of the CGIA “as if [he] were a ‘public employee.'” Colo. Rev. Stat. § 17-1-103(3)(d).
IV. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that Defendant Dr. Thiele's Renewed Motion to Dismiss [#205] be GRANTED and that all claims against Dr. Thiele be DISMISSED.
Within fourteen days after service of a copy of this Recommendation, any party may serve and file written objections to the magistrate judge's proposed findings of fact, legal conclusions, and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Griego v. Padilla (In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[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 or for appellate review.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings of fact, legal conclusions, and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings of fact, legal conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court's decision to review magistrate judge's recommendation de novo despite lack of an objection does not preclude application of “firm waiver rule”); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant waived right to appeal certain portions of magistrate judge's order by failing to object to those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding that plaintiffs waived their right to appeal the magistrate judge's ruling by failing to file objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (holding that firm waiver rule does not apply when the interests of justice require review).