instructing the district court to dismiss a claim with prejudice because the defendant was entitled to qualified immunity
How later courts described this case
- instructing the district court to dismiss a claim with prejudice because the defendant was entitled to qualified immunity
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CHRIS RYAN MILLS, )
)
Plaintiff, )
)
v. ) Case No. CIV-22-00226-JD
)
JOSH TINSLEY, et al., )
)
Defendants. )
ORDER
Before the Court is the Report and Recommendation (“R. & R.”) issued by United
States Magistrate Judge Amanda Maxfield Green on April 25, 2025. [Doc. No. 25].
Defendant Josh Tinsley (“Tinsley”) filed a Motion for Summary Judgment. [See
Doc. No. 18]. Plaintiff Chris Ryan Mills (“Plaintiff”), proceeding pro se, did not file a
response to Tinsley’s Motion for Summary Judgment. In the R. & R., Judge Green
concluded Tinsley is entitled to qualified immunity against Plaintiff’s claim because
Plaintiff has not met his burden of establishing Tinsley violated Plaintiff’s constitutional
rights by using excessive force. [Doc. No. 25 at 6–10].1 The R. & R., therefore,
recommends that the Court grant summary judgment to Tinsley.
The R. & R. advised the parties of the right to object by May 16, 2025, and
warned that failure to file a timely objection would waive the right to appellate review of
the factual and legal issues in the R. & R. [Doc. No. 25 at 10]. No party filed an objection
1 The R. & R. did not reach the other grounds raised by Tinsley in his Motion for
Summary Judgment. [See Doc. No. 18 at 7–8, 15–22]. The Court uses CM/ECF page
numbering from the top of district court docket filings.
or requested an extension of time to do so.
Prior to Tinsley’s Motion for Summary Judgment, the Court (1) dismissed without
prejudice Plaintiff’s request for habeas relief; (2) dismissed without prejudice Plaintiff’s
claims against Defendant Oklahoma Department of Public Safety, Defendant Oklahoma
Highway Patrol, and Tinsley in his official capacity; and (3) dismissed without prejudice
Plaintiff’s Fourth Amendment claim against Tinsley in his individual capacity for illegal
search and seizure. [Doc. No. 12 at 2–3]. Accordingly, the only claim that remains is
Plaintiff’s claim for use of excessive force in violation of the Fourth Amendment against
Tinsley in his individual capacity. [See id. at 3].
For the following reasons, the Court accepts the R. & R. disposing of the
remaining claim in Tinsley’s favor.
“[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 E. 30th St., 73 F.3d 1057, 1060 (10th Cir.
1996). The Tenth Circuit has “adopted a firm waiver rule when a party fails to object to
the findings and recommendations of the magistrate [judge].” Moore v. United States,
950 F.2d 656, 659 (10th Cir. 1991). This rule “provides that the failure to make timely
objection to the magistrate[ judge]’s findings or recommendations waives appellate
review of both factual and legal questions.” Id. There are two exceptions to the waiver
rule: “when (1) a pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object, or when (2) the ‘interests of justice’ require
review.” Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir. 2005) (quoting
Moore, 950 F.2d at 659). The Tenth Circuit has considered various factors to determine
whether the interests of justice require review, which include “[1] a pro se litigant’s effort
to comply, [2] the force and plausibility of the explanation for his failure to comply, and
[3] the importance of the issues raised.” /d. at 1120.
Neither party objected, and neither exception to the firm waiver rule applies.
Although Plaintiff is proceeding pro se, Judge Green advised Plaintiff of his right to
object and the consequences if he failed to object. [Doc. No. 25 at 10]. The interests of
justice do not require review, as the parties have not explained their lack of objection.
The interests of justice also do not require review under the factors provided by the Tenth
Circuit. Alternatively, although the Court is not required to review the record de novo, it
has done so and determines that the R. & R. should be adopted in full.
Consequently, the Court ACCEPTS the R. & R. [Doc. No. 25]. The Court
GRANTS Tinsley’s Motion for Summary Judgment. [Doc. No. 18]. A separate judgment
will follow.”
IT IS SO ORDERED this 9th day of June 2025.
UNITED STATES DISTRICT JUDGE
"This results in a with-prejudice disposition of the remaining claim in favor of
Tinsley. See Clark v. Wilson, 625 F.3d 686, 692 (10th Cir. 2010) (instructing the district
court to dismiss a claim with prejudice because the defendant was entitled to qualified
immunity).