Opinion
Civil Action 22-cv-00832-RM-STV
11-15-2022
ADAM WORSTER, Plaintiff, v. JEFF SHRADER, Sheriff for Jefferson County, in his official capacity, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
SCOTT T. VARHOLAK, UNITED STATED MAGISTRATE JUDGE
This matter is before the Court on Defendant Jefferson County Sheriff Jeff Shrader's Motion to Dismiss Prisoner Complaint Pursuant to Rule 12(b)(6) (the “Motion”). [#15] The Motion has been referred to this Court. [##18, 22] The Court has carefully considered the Motion and related briefing, the entire 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 Prisoner Complaint (the “Complaint”) [#1], which the Court accepts as true at this stage of the proceedings. 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 Complaint states that it “incorporates by reference . . . the attached Declaration of Adam Worster.” [#1 at ¶ 1] The Complaint has no attached declaration, and the Court has not been able to find any such Declaration in the record of this case.
At the time of the events giving rise to the present suit, Plaintiff Adam Worster (“Plaintiff” or “Mr. Worster”) was a detainee at the Jefferson County Jail (the “Jail”). [See #1] Plaintiff alleges that he made a “report and protest of official misconduct at the detention facility in 2021 during his placement in the medical ward-SHU.” [Id. at ¶ 6] The nature of the misconduct Plaintiff reported and the means by which he reported it are unclear. [See id.] Because of Plaintiff's protected report of misconduct, “Jefferson County Detention Facility staff submitted a false report to [the] Colorado Department of Correction[s]” (“CDOC”) incorrectly stating that Plaintiff had assaulted staff at the Jail. [Id. at ¶¶ 6-7] As a result of this false report, the CDOC classified Plaintiff as a violent offender. [Id. at 2] Plaintiff never had an opportunity to dispute this classification, or the report that led to it. [Id. at ¶ 4] As a result of this classification, Plaintiff has been placed in “administrative segregation/MCU” and is ineligible for rehabilitative programs, college courses, religious services, or executive clemency. [Id. at ¶ 4-5]
Plaintiff initiated the instant action by filing his Prisoner Complaint (the “Complaint”) on April 6, 2022.[#1] The Court construes the Complaint as asserting two claims under 42 U.S.C. § 1983 (“Section 1983”) for violations of Plaintiff's constitutional rights. [Id. at 3-5] First, Plaintiff alleges that “Defendant and his staff have unconstitutionally reported a false assault, and unfairly denied [Plaintiff] the opportunity to negate this false report[.]” [Id. at ¶ 8] The Court construes this as an allegation that Defendant violated Plaintiff's Fourteenth Amendment procedural due process rights. See U.S. Const. amend. XIV, § 1. Second, Plaintiff alleges that “Defendant and his staff have unconstitutionally retaliated against [Plaintiff] for reporting official misconduct.” [#1 at ¶ 8] The Court construes this as an allegation that Defendant violated Plaintiff's First Amendment rights by retaliating against Plaintiff for his constitutionally protected speech. See Shero v. City of Grove, Okla., 510 F.3d 1196, 1203 (10th Cir. 2007). The claims are brought against Defendant Jefferson County Sheriff Jeff Shrader in his official capacity. [#1 at 3] The Complaint seeks: (1) “Appropriate equitable relief, including prospective injunctive and declaratory relief,” and (2) “Pre-Judgment and post-judgment interest at the highest lawful rate, attorney fees and costs of litigation, expert fees, and any other relief this court deems just and proper.” [Id. at 7] On June 21, 2022, Defendant filed the instant Motion, seeking dismissal of all claims. [#15] Plaintiff did not file a response to the Motion, and the time to do so has lapsed. See D.C.COLO.LCivR 7.1(d); see also [##25, 26 (sua sponte extending Plaintiff's response deadline, and attempting to reach him at all plausible addresses)].
Prior to initiating the instant action, Plaintiff was transferred from the Jail to the Fremont Correctional Facility (“FCF”). [#1 at 2 (listing the address of FCF as Plaintiff's address.)] Since filing his Complaint, Plaintiff has not informed the Court of any change in his mailing address. He may have subsequently been transferred to the Centennial Correctional Facility. [#20 at 2, 2 n.1]
The Court notes that there is a potential issue of its subject matter jurisdiction. See Citizens Concerned for Separation of Church & State v. City & Cty. of Denver, 628 F.2d 1289, 1301 (10th Cir. 1980) (“A federal court must in every case, and at every stage of the proceeding, satisfy itself as to its own jurisdiction, and the court is not bound by the acts or pleadings of the parties.”); see also Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974) (Even “[i]f the parties do not raise the question of lack of jurisdiction, it is the duty of the federal court to determine the matter sua sponte.”). It is not clear from the Complaint what injunctive relief Plaintiff seeks. [#1 at 7] To the extent that Plaintiff seeks prospective injunctive and declaratory relief related to the conditions of his confinement at the Jefferson County Jail, an action for such relief would likely be moot because of his transfer out of the Jail. Mitchell v. Estrada, 225 Fed.Appx. 737, 741 (10th Cir. 2007) (“An inmate's transfer from a prison facility generally moots claims for declaratory and injunctive relief related to conditions of confinement.” (citing Green v. Branson, 108 F.3d 1296, 1299-1300 (10th Cir. 1997) (holding that release from prison moots claims for declaratory and injunctive relief), Love v. Summit County, 776 F.2d 908, 910 n.4, 912 (10th Cir. 1985) (indicating that the general rule applies to a transfer between prisons))); [see also #1 at 2]. To the extent to which Plaintiff might seek equitable relief in the form of a retraction or correction of the report to the CDOC, however, such an action likely presents a live dispute over which this Court would have subject matter jurisdiction, given that Plaintiff alleges the report continues to impact his conditions of confinement as a CDOC inmate. [#1 at ¶ 5] Furthermore, the Court liberally construes Plaintiff's second prayer for relief as seeking monetary damages. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers.). Because the Court construes the Complaint as seeking monetary damages, and because Plaintiff may seek equitable relief that is within the Court's power to grant, the Court is satisfied at this stage of the proceedings that it has subject matter jurisdiction over this lawsuit.
II. STANDARD OF REVIEW
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.” Cassanova 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). And “even if a plaintiff does not file a response to a motion to dismiss for failure to state a claim, the district court must still examine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted.” Issa v. Comp USA, 354 F.3d 1174, 1178 (10th Cir. 2003) (citations omitted); see also Fournerat v. Wisconsin L. Rev., 420 Fed.Appx. 816, 819-20 (10th Cir. 2011) (finding that the district court erred in deeming defendants' motion to dismiss confessed because the plaintiff failed to respond).
“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, 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). Moreover, pro se parties must “follow the same rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).
III. ANALYSIS
Plaintiff has sued Defendant in his official capacity for alleged violations of Plaintiff's constitutional rights. [#1 at 2-3] Section 1983 creates a cause of action for individuals whose constitutional rights are violated by a “person” acting under color of law. 42 U.S.C. § 1983. Under Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978), a local governmental unit such as a county “is a ‘person' subject to § 1983 liability.” McDonald v. Wise, 769 F.3d 1202, 1215 (10th Cir. 2014). And a suit against a sheriff in their official capacity “is the equivalent” of a suit against the county itself. Cox v. Glanz, 800 F.3d 1231, 1254 (10th Cir. 2015) (quotation omitted).
The Motion argues that Plaintiff has failed to state a claim that his procedural due process rights were violated, both because he failed to allege the violation of a protected liberty interest [#15 at 8-9], and because he failed to allege that any such violation was caused by a policy established by Defendant [id. at 9-11]. The Motion also argues that Plaintiff has failed to state a plausible claim that Defendant unconstitutionally retaliated against Plaintiff. [Id. at 4-7] The Court addresses each claim in turn, and then addresses whether Plaintiff has properly alleged Defendant's liability.
A. Procedural Due Process
Plaintiff alleges that he was denied procedural due process by being placed in administrative segregation without a hearing. [#1 at ¶ 4] “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty' or ‘property' interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (quotations omitted). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Id. at 333 (quotation omitted). The Tenth Circuit has “held that, ‘[t]o assess whether an individual was denied procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and, if so, then (2) was the individual afforded an appropriate level of process.'” Brown v. Montoya, 662 F.3d 1152, 1167 (10th Cir. 2011) (quoting Merrifield v. Bd. of Cty. Comm'rs, 654 F.3d 1073, 1078 (10th Cir.2011)).
“Procedural due process guarantees apply only to those liberty and property interests encompassed by the fourteenth amendment.” Brown v. Eppler, 725 F.3d 1221, 1225 (10th Cir. 2013) (emphasis omitted). For convicted prisoners, a protected liberty interest may arise in two scenarios. First, when the disciplinary actions “inevitably affect the duration of [the inmate's] sentence.” Sandin v. Conner, 515 U.S. 472, 487 (1988). Second, a protected liberty interest may arise when an inmate is subjected to conditions that “impose[] atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” Id. at 484; see also Rezaq v. Nalley, 677 F.3d 1001, 1011 (10th Cir. 2012). The Tenth Circuit typically considers four non-dispositive factors in determining whether a segregation imposes such a hardship: “whether (1) the segregation relates to and furthers a legitimate penological interest, such as safety or rehabilitation; (2) the conditions of placement are extreme; (3) the placement increases the duration of confinement . . .; and (4) the placement is indeterminate.” Estate of DiMarco v. Wyo. Dep't of Corr., Div. of Prisons, 473 F.3d 1334, 1342 (10th Cir. 2007).
In his Motion, Defendant states that Plaintiff was held at the Jail during his criminal prosecution, and was sentenced to the CDOC on May 24, 2021. [#15 at 2] Plaintiff's Complaint alleges that the assault was reported to the CDOC in June of 2021. [#1 at ¶ 4] Thus, while not entirely clear from the Complaint, it appears that Plaintiff's placement in administrative segregation occurred after he had been a convicted and sentenced prisoner, and the Court will analyze as such.
Here, though Plaintiff alleges that his segregation did not relate to or further a legitimate penological interest, but rather that it was retaliatory [#1 at 2, ¶ 4], he has failed to plausibly allege any other factors suggesting that his administrative segregation placement constituted an atypical or significant hardship. Plaintiff alleges that his classification denies him the ability to participate in “rehabilitative programs, such as college course and religious services” [id. at ¶6], but such allegations do not meet the high bar for establishing “extreme” conditions. See, e.g., Jordan v. Fed. Bureau of Prisons, 191 Fed.Appx. 639, 651 n.9 (10th Cir. 2006) (citing Beverati v. Smith, 120 F.3d 500, 504 (4th Cir.1997) for the proposition that a “six-month placement in administrative segregation was not atypical compared with the general prison population even though officials kept inmates in their cells except for three to four times each week; denied them outside recreation, educational, and religious services; warm or large portions of food, and clean clothing and bedding; and inmates' cells were infested with vermin, smeared with human feces and urine, flooded with water, and [were] unbearably hot.”); Hornsby v. Jones, 188 Fed.Appx. 684, 689 (10th Cir. 2006) (holding that the plaintiff did not allege an “atypical and significant hardship” where he alleged his administrative segregation for 120 days deprived him of work and leisure opportunities, as well as access to the law library). And while Plaintiff alleges that his “restrictive environment will exclude [him] from commutation of his sentence through executive clemency” [#1 at ¶ 5], he fails to allege why his administrative segregation will deprive him of the potential for executive clemency or whether he was being considered for or had a realistic possibility of executive clemency.Nor is there any allegation that such loss of the potential for executive clemency-or any other loss of privileges-had a lasting impact, since Plaintiff fails to make any allegations about the length of his placement in administrative segregation or whether such placement was indefinite. [See generally #1] Accordingly, the Court cannot find that Plaintiff has pled facts sufficient to allow a reasonable inference that his segregation implicated liberty interests protected by the Fourteenth Amendment.
The Court notes that it would not necessarily agree that the conditions cited in Beverati failed to rise to the level of “extreme.” Nonetheless, Plaintiff has not alleged conditions anywhere near as extreme as those alleged in Beverati.
Analyzing Colorado statutes and CDOC regulations in effect in 1994, the Tenth Circuit held that administrative segregation for a Colorado prisoner did not implicate a protected liberty interest, even when it deprived the prisoner of the ability to accrue earned time, good time, or sentence commutation credits. Templeman v. Gunter, 16 F.3d 367, 369-71 (10th Cir. 1994).
Since Plaintiff has not pled that he was deprived of any liberty to which he was entitled, “no particular process was conditionally due or required.” Templeman v. Gunter, 16 F.3d 367, 71 (10th Cir. 1994). Accordingly, the Court respectfully RECOMMENDS that Defendant's Motion be GRANTED to the extent it seeks dismissal of Plaintiff's claims for violation of his due process rights and that those claims be DISMISSED WITHOUT PREJUDICE. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir. 2001) (holding that when the plaintiff is proceeding pro se, dismissal with prejudice is only appropriate “where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend” (quotation omitted)); Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990) (holding prejudice should not attach to dismissal when plaintiff has made allegations “which, upon further investigation and development, could raise substantial issues”).
B. First Amendment Retaliation
Plaintiff alleges, in retaliation for his “report and protest of official misconduct at the detention facility in 2021 during his placement in the medical ward-SHU,” “Jefferson County Detention Facility staff submitted a false report to [the] Colorado Department of Correction[s]” incorrectly stating that Plaintiff had assaulted staff at the Jail when no assault actually occurred. [#1 at ¶¶ 6-7] As a result of this false report, the Colorado Department of Corrections classified Plaintiff as a violent offender. [Id. at 2]
The First Amendment prohibits officials from retaliating against individuals for exercising their constitutional rights. Poole v. Cnty. of Otero, 271 F.3d 955, 960 (10th Cir. 2001) (“Retaliation, though it is not expressly referred to in the Constitution, is nonetheless actionable because retaliatory actions may tend to chill individuals' exercise of constitutional rights.” (quotation omitted)), abrogated on other grounds by Hartman v. Moore, 547 U.S. 250 (2006). To state a First Amendment retaliation claim against a government official, a plaintiff must plausibly allege three elements:
(1) That the plaintiff was engaged in constitutionally protected activity; (2) that the defendant's actions caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) that the defendant's adverse action was substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct.Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007). The Tenth Circuit has further explained:
To make a prisoner's claim of retaliation by a prison official plausible, it must be supported by (1) specific facts about the adverse action taken against the prisoner to make it plausible that the action was not motivated by legitimate grounds and (2) specific facts showing why the particular official would be motivated to improperly harm the prisoner.Guy v. Lampert, 748 Fed.Appx. 178, 181 (10th Cir. 2018).
Here, Plaintiff has failed to allege specific facts showing retaliation. He alleges that “Jefferson County Detention Facility staff” or “officials at Jefferson County Detention Facility” submitted a false report to the CDOC, but he does not state which staff members or officials submitted the report. [#1 at 2, ¶ 6] Plaintiff asserts that this report was “in direct response” to his engagement in constitutionally protected activity [id. at ¶ 6], but this is precisely the kind of formulaic recitation of the elements of a cause of action that “will not do” to state a claim. Twombly, 550 U.S. at 555. Other than this conclusory assertion, Plaintiff pleads no facts that would support a conclusion that these unnamed “staff” or “officials” even knew about his report of official misconduct, let alone that they acted out of an intent to retaliate against him for his report. [See id.]
Because Plaintiff has failed to allege specific facts showing retaliation, the Court respectfully RECOMMENDS that Defendant's Motion be GRANTED to the extent it seeks dismissal of Plaintiff's claims of retaliation in violation of his first amendment rights and that those claims be DISMISSED WITHOUT PREJUDICE. See Oxendine, 241 F.3d at 1275 (holding that when the plaintiff is proceeding pro se, dismissal with prejudice is only appropriate “where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend” (quotation omitted)); Reynoldson, 907 F.2d at 127 (holding prejudice should not attach to dismissal when plaintiff has made allegations “which, upon further investigation and development, could raise substantial issues”).
C. Defendant's Liability
“A county or sheriff in his official capacity cannot be held ‘liable for constitutional violations when there was no underlying constitutional violation by any of its officers.'” Martinez v. Beggs, 563 F.3d 1082, 1091 (10th Cir. 2009) (quoting Olsen v. Layton Hills Mall, 312 F.3d 1304, 1317-18 (10th Cir. 2002)) Because the Court cannot find that Plaintiff has sufficiently pled either a violation of his due process rights or retaliation against him in violation of his first amendment rights, it need not analyze whether Defendant might have been liable for any such violation. Because the Court recommends dismissal without prejudice to refiling for the reasons discussed above, however, the Court finds it expedient to address the question of Defendant's liability for any constitutional violations.
Even if Plaintiff had alleged a plausible claim of a violation of his constitutional rights, he has pled no facts that would make such retaliation attributable to Defendant. Once again, Plaintiff has sued Defendant in his official capacity, which is the equivalent of a suit against the county itself. [#1 at 2-3]; see also Cox, 800 F.3d at 1254. In supportof county liability, however, Plaintiff merely asserts that Defendant “is the Administrative Head for the [Jail], and is responsible for the overall management, supervision, and control [of] the [Jail].” [#1 at 2]
“[Municipalities and municipal entities . . . are not liable under 42 U.S.C. § 1983 solely because their employees inflict injury on a plaintiff.” Fofana v. Jefferson Cnty. Sheriff's, No. 11-cv-00132-BNB, 2011 WL 780965, at *2 (D. Colo. Feb. 28, 2011) (citing Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658, 694 (1978); Hinton v. City of Elwood, 997 F.2d 774, 782 (10th Cir. 1993)). Instead, to state a claim under Section 1983 against a sheriff in his official capacity, a plaintiff must plead facts sufficient to support the inference that a county policy or custom directly caused his injury. Id.; see also Fuerschbach v. Sw. Airlines Co., 439 F.3d 1197, 1210 (10th Cir. 2006) (“[A] municipality can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where ‘the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.'” (quoting Monell, 436 U.S. at 690)).
“A challenged practice may be deemed an official policy or custom for § 1983 municipal-liability purposes if it is a formally promulgated policy, a well-settled custom or practice, a final decision by a municipal policymaker, or deliberately indifferent training or supervision.” Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 770 (10th Cir. 2013). After identifying an official policy or custom, the plaintiff must demonstrate causation by showing that the policy or custom “is the moving force behind the injury alleged.” Cacioppo v. Town of Vail, 528 Fed.Appx. 929, 931 (10th Cir. 2013) (quoting Barney v. Pulsipher, 143 F.3d 1299, 1307 (10th Cir. 1998)); see also Kentucky v. Graham, 473 U.S. 159, 166 (1985) (same). Finally, the plaintiff must demonstrate “that the policy was enacted or maintained with deliberate indifference to an almost inevitable constitutional injury.” Cacioppo, 528 Fed.Appx. at 931 (quoting Schneider, 717 F.3d at 769).
Here, Plaintiff has made no allegations whatsoever that any official policy is relevant to the alleged deprivation of his constitutional rights existed. [See generally #1] Neither does he allege any facts supporting a pattern of multiple similar instances of misconduct, or assert other evidence, such as a police officer's statements attesting to an unwritten policy's existence. See Sexton v. City of Colorado Springs, 530 F.Supp.3d 1044, 1070 (D. Colo. 2021) (quoting Griego v. City of Albuquerque, 100 F.Supp.3d 1192, 1213 (D.N.M. 2015)). Nor has Plaintiff alleged that any such policy or practice caused his alleged injuries, or that Defendant implemented any such policy or practice with the requisite state of mind. [See generally #1] Thus, for this additional reason, Plaintiff's claim against Defendant fails.
V. CONCLUSION
For the foregoing reasons, this Court respectfully RECOMMENDS that Defendant's Motion to Dismiss Prisoner Complaint Pursuant to Rule 12(b)(6) [#15] be GRANTED and that Plaintiff's Amended Complaint be DISMISSED WITHOUT PREJUDICE. If this Recommendation is adopted, the Court further RECOMMENDS that Plaintiff be granted leave to file an Amended Complaint within 21 days of the Order Adopting this Recommendation and that Plaintiff be instructed that his failure to do so will result in the dismissal of this action.
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, 195 F.3d 573, 57980 (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).