Abdelraouf Abdelmeged v. Department of Army

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
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ABDELRAOUF ABDELMEGED,
Plaintiff - Appellant,
v.
DEPARTMENT OF ARMY,
Defendant - Appellee.
No. 21-1035
(D.C. No. 1:19-CV-03186-DDD-NRN)
(D. Colo.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, PHILLIPS, and EID, Circuit Judges.
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Abdelraouf Abdelmeged, pro se, appeals from the district court’s order that
granted the motion to dismiss filed by the Department of the Army (Army). For the
reasons stated below, we dismiss the appeal.
Mr. Abdelmeged filed suit against the Army under the Federal Tort Claims Act
(FTCA). According to the allegations in the amended complaint, in June 2008, while
he was working as a contract interpreter for the Army in Iraq, “Sargent (sic) Chang
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
November 16, 2021
Christopher M. Wolpert
Clerk of Court
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abused his power by attempting to shoot me when I questioned him about the
whereabouts of civilian kids in Iraq.” Suppl. R. at 5. “[W]hen I asked him about [the
kids], he pulled out his silencer pistole (sic) and put it to my head and tried to shoot
me but it was empty.” Id. Mr. Abdelmeged further alleged that he “[c]omplained to
Chang’s higher ups, Captains Sesame and Kraske,” but they failed to act. Id.
The following day, he was “put [on] a mission. I was on [a] tank . . . during
this mission [and] they attempted to leave me behind after they destroyed some
farmland. Luckily there was another tank in the area where I got a ride back to my
unit.” Id. “When I made another complaint about Chang[,] [this time] to Captain
Tom, Chang approached me and told me if you do not shut up[,] I will get you and
your family. I know where you live.” Id. “Afterwards[,] [t]hey (Sesame, Chang)
terminated me from Company L3.” Id. Mr. Abdelmeged sought damages in the form
of his “army benefits . . . [o]r . . . my salary that I was supposed to get from L3
Company.” Id. at 6.
The Army moved to dismiss the amended complaint for several reasons
including lack of subject-matter jurisdiction, failure to state a claim, and as time-
barred under the applicable statute of limitations. The magistrate judge issued a
thorough and well-reasoned recommendation in which it recommended granting the
motion. At the conclusion of the recommendation, the judge issued the following
warning:
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P.
72(b)(2), the parties have fourteen (14) days after service of this
recommendation to serve and file specific written objections to the
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above recommendation with the District Judge assigned to the case. A
party may respond to another party’s objections within fourteen (14)
days after being served with a copy. The District Judge need not
consider frivolous, conclusive, or general objections. A party’s failure
to file and serve such written, specific objections waives de novo review
of the recommendation by the District Judge . . . and also waives
appellate review of both factual and legal questions.
R. at 79-80.
Following Mr. Abdelmeged’s failure to file any objections to the magistrate
judge’s recommendation, the district court “reviewed the recommendation to satisfy
itself that there is no clear error on the face of the record,” and after finding no such
error, adopted the recommendation and granted the Army’s motion to dismiss. Id. at
82 (internal quotation marks omitted). Mr. Abdelmeged appealed.
On February 5, 2021, this court issued an order to Mr. Abdelmeged to show
cause why he did not waive his right to appellate review by failing to object to the
magistrate judge’s recommendation. Mr. Abdelmeged filed a response; however, it
did not address the issue raised in the show cause order. This court gave
Mr. Abdelmeged a second opportunity to address the issue, but once again, his
response was not on point and simply provided more detail on his experiences in Iraq
and efforts to collect benefits from the Army.
Our firm-waiver rule holds that a party who does not object to a magistrate
judge’s recommendation “waives appellate review of both factual and legal
questions.” Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005). The
rule has two exceptions. It does not apply if a pro se litigant has not been advised of
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the objection deadline and the consequences of failing to object or we exercise our
discretion to overlook the rule if the interests of justice require review. See id.
The first exception does not apply here because the magistrate judge’s
recommendation clearly informed Mr. Abdelmeged of the objection deadline and the
consequences of failing to object. As to the second exception, we look at several
factors, including “a 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.”
Id. at 1120 (italics omitted). “In many respects, the interests of justice analysis . . . is
similar to reviewing for plain error.” Id. “Plain error occurs when there is (1) error,
(2) that is plain, which (3) affects substantial rights, and which (4) seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” Id. at 1122-23
(internal quotation marks omitted).
Because Mr. Abdelmeged failed to file any meaningful response to this court’s
show cause order, we have no information regarding his efforts, if any, to comply
with the requirement to file objections or the plausibility of the reason he failed to do
so. Moreover, we have carefully reviewed the magistrate judge’s recommendation
and district court’s order and find no error. In sum, there is nothing to suggest we
should overlook the firm-waive rule in the interests of justice.
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The appeal is dismissed.
Entered for the Court
Allison H. Eid
Circuit Judge
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