Torres v. Polis

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 24, 2026
• Docket: 25-1115
• Status: Unpublished

Opinion

Appellate Case: 25-1115 Document: 23-1 Date Filed: 04/24/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 24, 2026 _________________________________ Christopher M. Wolpert Clerk of Court FELIX MAURO TORRES,

Plaintiff - Appellant,

v. No. 25-1115 (D.C. No. 1:24-CV-00142-SKC-KAS) JARED POLIS, Governor; PAX LEIA (D. Colo.) MOULTRIE, Judge; DENVER DISTRICT COURT FAMILY DIVISION; VANESSA GUZMAN,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before BACHARACH, McHUGH, and ROSSMAN, Circuit Judges. _________________________________

Feliz Mauro Torres, proceeding pro se, brought this 42 U.S.C. § 1983 action

against Judge Pax Leia Moultrie, Governor Jared Polis, the Denver District Court

Family Division 1 (collectively, the state defendants), and his ex-wife Vanessa

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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.

As the magistrate judge observed, the state defendants indicated the correct 1

entity was the Denver Juvenile Court. R. vol. II at 24–25 n.1, 118 n.1. The state defendants make the same point again on appeal. See Aplee. Resp. Br. at 1 n.1. But Appellate Case: 25-1115 Document: 23-1 Date Filed: 04/24/2026 Page: 2

Guzman, alleging they violated his parental rights under the Fourteenth Amendment. 2

The district court dismissed all claims, adopting the recommendation of a United

States Magistrate Judge. Mr. Torres did not object to the recommendation. He now

appeals. Under this court’s firm waiver rule, Mr. Torres waived his right to appellate

review. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I

A custody dispute forms the backdrop of this appeal. Mr. Torres and

Ms. Guzman were married in June 2018 and separated six months later in December.

Their son was born in August 2019. Since then, Mr. Torres alleges Ms. Guzman has

“forcefully and deliberately prevented [him] from vesting his rightful relationship

with” his son and eventually prohibited visitation “without a court order.” R. vol. II

at 16. In December 2023, Denver District Court Judge Pax Leia Moultrie held a

hearing “on the matter of [Mr. Torres’s] right to access and parent” his son. Id. at 14.

Mr. Torres describes the court’s ruling as placing two conditions on his parental

access: (1) that he “engage a Court appointed Guardian Ad Litem for [his] son”; and

(2) that he “prove financial worthiness.” Id.

neither the magistrate judge nor the district court discussed the matter further. Because our disposition does not turn on the precise identity of that entity, we need not resolve the naming issue. 2 Because Mr. Torres proceeds pro se, “we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).

2 Appellate Case: 25-1115 Document: 23-1 Date Filed: 04/24/2026 Page: 3

In response to Ms. Guzman’s visitation restrictions and the conditions imposed

at the December 2023 hearing, Mr. Torres filed this § 1983 action in federal court in

the District of Colorado against the state defendants and Ms. Guzman. After being

directed to cure deficiencies in his original complaint, he filed an amended

complaint, asserting violations of his parental rights under the Fourteenth

Amendment. He sought five million dollars in damages from each defendant for the

“loss of contact” with his son. Id. at 19. He also requested injunctive relief, asking

the court to “immediately and without hesitation recognize, support and fully enforce

[his] parental activities.” Id. at 18.

The state defendants and Ms. Guzman moved to dismiss the amended

complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The parties

declined to consent to the jurisdiction of a magistrate judge. See R. vol. I at 4 (Dist.

Ct. Dkt. No. 19). The district court referred the motions to a magistrate judge for a

recommendation. See 28 U.S.C. § 636(b)(1)(B). On February 26, 2025, the

magistrate judge recommended dismissing the case for lack of subject matter

jurisdiction under the Rooker-Feldman doctrine—which bars federal suits that are, in

substance, appeals of state court judgments. 3 Bear v. Patton, 451 F.3d 639, 641 n.2

(10th Cir. 2006) (explaining “the Rooker–Feldman doctrine divests federal district

3 The magistrate judge reached this decision based in part on Mr. Torres’s representation the state proceedings had concluded. See R. vol. II at 89 (“The foundation of the defendants’ arguments is that there was an ongoing case and, in fact, there was not.”). The magistrate judge held in the alternative that even if proceedings had not concluded, dismissal would be appropriate under the Younger abstention doctrine. R. vol. II at 125 nn. 5–6. 3 Appellate Case: 25-1115 Document: 23-1 Date Filed: 04/24/2026 Page: 4

courts of subject matter jurisdiction over claims that seek, in substance, appellate

review of final state-court judgments.”)

The recommendation advised Mr. Torres “that any party may file objections

within 14 days of service of this Recommendation.” R. vol. II at 129. It also

warned “a party who fails to make a timely objection . . . waives appellate review of

both factual and legal questions.” Id. at 130 (quoting Morales-Fernandez v. INS,

418 F.3d 1116, 1119 (10th Cir. 2005)).

Mr. Torres did not file a timely objection. Recognizing that no objection had

been filed, the district court reviewed the recommendation “to satisfy itself that there

is ‘no clear error on the face of the record.’” R. vol. II at 134 (quoting Fed. R. Civ.

P. 72(b), 1983 advisory comm. note). The court found no clear error and adopted the

recommendation, dismissing Mr. Torres’s claims without prejudice.

Mr. Torres timely appealed to this court. We briefly abated the appeal pending

resolution of a motion to clarify filed by Mr. Torres in the district court, which the

district court denied. See Dkt. Nos. 2, 5. On April 2, 2025, this court then ordered

Mr. Torres to show cause why his failure to object to the magistrate judge’s

recommendation did not waive his right to appellate review under the firm waiver

rule. See Dkt. No. 5.

Before responding to the show-cause order, Mr. Torres filed another motion in

the district court to vacate the final judgment under Federal Rule of Civil Procedure

4 Appellate Case: 25-1115 Document: 23-1 Date Filed: 04/24/2026 Page: 5

60(b)(4). 4 He argued the district court’s review of the recommendation “only for

clear error [was] . . . constitutionally and procedurally invalid” because he “expressly

withheld consent to proceed before a magistrate judge.” R. vol. II at 173, 175

(internal quotation marks omitted). In his view, his refusal to consent to the

jurisdiction of the magistrate judge required the district court to review the

recommendation de novo, and its failure to do so rendered the judgment void. See R.

vol. II at 175.

The district court denied the motion. It explained Mr. Torres had not objected

to the magistrate judge’s recommendation, so de novo review was not required. See

Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). The court further observed that, as an

“e-filer” “from [the] early stages” of the case, Mr. Torres was “presumed to have

received all filings when they were docketed electronically.” Id. at 179.

On May 1, 2025, Mr. Torres responded to the show-cause order. See Dkt.

No. 9. Mr. Torres contended (1) he was “denied access to the timely delivery of the

documents” that were “mailed instead of submitted to the . . . online case

management system,” and (2) “clear-error review,” as conducted by the district court,

was “not legally sufficient for dispositive matters when a party has not consented.”

Id. at 2–3 (internal quotation marks omitted).

4 Mr. Torres does not appeal the denial of this motion. We discuss the district court’s reasoning as it bears on the procedural history and our analysis of the firm waiver issue. 5 Appellate Case: 25-1115 Document: 23-1 Date Filed: 04/24/2026 Page: 6

On June 23, 2025, Mr. Torres filed his opening brief with this court. 5 As we

will explain, neither Mr. Torres’s filings nor our own review of the record supports

setting aside the firm waiver rule.

II

On appeal, Mr. Torres raises four arguments: the district court erred by

reviewing the magistrate judge’s report and recommendation only for clear error; the

district court misapplied the Rooker-Feldman doctrine; the defendants’ untimely

filings entitled him to a default judgment; and Eleventh Amendment immunity does

not bar his claims. The state defendants respond that Mr. Torres “waived appellate

review of the dismissal by failing to object to the magistrate judge’s

recommendation.” Aplee. Resp. Br. at 10. We agree that firm waiver resolves this

appeal.

This court has adopted a firm waiver rule which provides “a party who fails to

make a timely objection to the magistrate judge’s findings and recommendations

waives appellate review of both factual and legal questions.” Morales-Fernandez,

5 Over the course of this appeal, Mr. Torres filed documents in the wrong court. Relevant here, on April 4, 2025, Mr. Torres filed a document titled “Appellant’s Opening Brief” in the district court, not this court. Later, on June 23, 2025—the date his opening brief was due—he mailed a different document to this court, which was docketed as his opening brief. That document is titled, “Plaintiff’s Objections to February 26, 2025, Order & Recommendation of Magistrate Judge Under Rule 72(b), with Constitutional Challenge to Continued Federal Jurisdiction.” Aplt. Opening Br. at 1. It is addressed to the district court rather than this court. Because Mr. Torres has never suggested this document is anything but his opening brief, we treat it as such, as did the state defendants. In any event, any misfiling is immaterial to our disposition. 6 Appellate Case: 25-1115 Document: 23-1 Date Filed: 04/24/2026 Page: 7

418 F.3d at 1119. “This rule does not apply, however, 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.” Id. (internal quotation

marks omitted). Neither exception applies here.

The first exception is unavailable because the recommendation informed

Mr. Torres of both the time period for objecting and the consequences of failing to do

so. Mr. Torres does not argue otherwise.

The second exception also does not apply. In determining whether the

interests of justice excuse application of the firm waiver rule, we consider (1) “a pro

se litigant’s effort to comply” with the objection requirement, (2) “the force and

plausibility of the explanation for his failure to comply,” and (3) “the importance of

the issues raised.” Duffield v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008)

(internal quotation marks omitted). None of these factors support Mr. Torres.

As to the first factor, nothing in the record suggests Mr. Torres complied with

the fourteen-day objection requirement. Mr. Torres was aware the district court had

adopted the magistrate judge’s recommendation. Within two weeks of the district

court’s entry of final judgment, Mr. Torres filed multiple motions in the district

court—including a motion to vacate. Mr. Torres never gave any reason for his

failure to file a timely objection, sought more time to file an objection, or requested

leave to object out of time. See R. vol. II at 137–38 (motion for findings of fact and

conclusions of law); id. at 141–42 (substantially similar motion); id. at 173–77

(motion to vacate); see Theede v. U.S. Dep’t of Lab., 172 F.3d 1262, 1268 (10th Cir.

7 Appellate Case: 25-1115 Document: 23-1 Date Filed: 04/24/2026 Page: 8

1999) (declining to excuse waiver where the litigant “failed to identify any efforts he

made to obtain the magistrate’s recommendation after being made aware of its

existence”).

As to the second factor, Mr. Torres’s explanations for failing to object lack

“force and plausibility.” Duffield, 545 F.3d at 1238 (internal quotation marks

omitted). Mr. Torres’s assertion the filings were “mailed instead of submitted” to the

electronic filing system is not borne out by the governing rules or the record. The

District of Colorado permits pro se parties to file and receive documents

electronically if they obtain authorization. See D.C.COLO.LCivR 5.1(b)(3).

Mr. Torres did exactly that—the district court docket confirms his e-filer status since

January 26, 2024, ten days after filing the original complaint. See R. vol. I at 1. The

district court similarly observed that, as an e-filer, he was “presumed to have

received all filings” docketed electronically. R. vol. II at 179. We see nothing in the

record suggesting otherwise.

Mr. Torres further states “intervening litigation deadlines” and “the need to

research” legal issues “required additional time beyond the original 14-day

window.” 6 Aplt. Opening Br. at 9. But his explanation does not account for his

6 These explanations appear in a document styled “Motion for Leave to File Objections Nunc Pro Tunc” that Mr. Torres appended to his opening brief. Aplt. Opening Br. at 8. The attachment, like the opening brief itself, is addressed to the district court. Two days after filing his opening brief here, Mr. Torres filed the attached motion in the district court. See Dist. Ct. Dkt. No. 61. The next day the district court held it lacked jurisdiction to rule on the motion because the case was on appeal, but pointed out that it had considered and rejected the arguments it raised. See Dist. Ct. Dkt. No. 62. Mr. Torres does not acknowledge that order in his reply 8 Appellate Case: 25-1115 Document: 23-1 Date Filed: 04/24/2026 Page: 9

failure to take any steps to object to the recommendation. Mr. Torres remained

otherwise active in the litigation. Cf. Casanova v. Ulibarri, 595 F.3d 1120, 1123–24

(10th Cir. 2010) (excusing waiver where the litigant documented multiple inquiries to

the clerk’s office, alerted the court to mail-delivery problems, and was medically

“indisposed” during the objection period).

Finally, the third factor—the importance of the issues raised—does not support

an exception to the firm waiver rule. We have explained this inquiry is “similar to

reviewing for plain error.” Duffield, 545 F.3d at 1238 (internal quotation marks

omitted). 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. (internal quotation marks omitted).

Nothing in this record suggests this standard is met.

In his show-cause response, Mr. Torres challenges the district court’s decision

to review the recommendation for clear-error. See Dkt. No. 9 at 3–4 (capitalization

altered). He does not dispute that a magistrate judge may issue a recommendation on

a dispositive motion. Id. at 4; see § 636(b)(1)(B). Rather, he contends that because

he did not consent under 28 U.S.C. § 636(c) to final disposition by the magistrate

judge, the district court was required to review recommendations de novo. Id. at 3–4;

see also Aplt. Opening Br. at 4 (stating similar). In his view, the district court’s

decision to review only for clear error effectively treated the recommendation as an

brief. We therefore consider the attachment only insofar as it explains his failure to object, which bears on the interests-of-justice exception to firm waiver. 9 Appellate Case: 25-1115 Document: 23-1 Date Filed: 04/24/2026 Page: 10

unauthorized final order, creating a “structural constitutional violation” that “cannot

be waived by rule.” Dkt. No. 9 at 3 (capitalization altered). We are not persuaded.

The standard of review the district court applied turned on Mr. Torres’s failure

to object. De novo review is required only “of those portions of the report . . . or

recommendation[] to which objection is made.” § 636(b)(1) (emphasis added). As

this court has stated, “[i]n the absence of timely objection, the district court may

review a magistrate[ judge]’s report under any standard it deems appropriate.”

Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); Thomas v. Arn, 474 U.S.

140, 150 (1985) (“It does not appear that Congress intended to require district court

review of a magistrate’s factual or legal conclusions, under a de novo or any other

standard, when neither party objects to those findings.”). The magistrate judge

issued a recommendation consistent with § 636(b)(1)(B), Mr. Torres did not object,

and an Article III judicial officer entered the final order. We thus discern no error in

the court’s decision to review the magistrate’s report and recommendation for clear

error. 7

To be sure, “a magistrate [judge] is not authorized to render final appealable 7

decisions . . . absent both designation by the district court and consent of the parties under 28 U.S.C. § 636(c).” Colo. Bldg. & Constr. Trades Council v. B.B. Andersen Constr. Co., 879 F.2d 809, 811 (10th Cir. 1989). But here the magistrate judge did not render a final decision. As the district court observed in its order denying the motion to vacate, the court chose “to refer dispositive motions to [the magistrate judge] for her recommendation.” R. vol. II at 179. The magistrate judge issued a recommendation consistent with § 636(b)(1)(C), and Mr. Torres did not object. To the extent Mr. Torres characterizes his challenge as a non-waivable jurisdictional defect, we are not persuaded. Indeed, this court has rejected that sort of argument before. See United States v. Finnesy, 953 F.3d 675, 683 (10th Cir. 2020) (explaining that “a magistrate judge’s lack of statutory authority is not a jurisdictional defect, so 10 Appellate Case: 25-1115 Document: 23-1 Date Filed: 04/24/2026 Page: 11

Because neither exception to the firm waiver rule applies, we conclude

Mr. Torres waived appellate review of both factual and legal questions by failing to

object to the magistrate judge’s recommendation.

III

We AFFIRM the judgment of the district court.

Entered for the Court

Veronica S. Rossman Circuit Judge

any objection is waived if not raised” (quoting Clark v. Poulton, 963 F.2d 1361, 1367 (10th Cir. 1992))). 11