Hopgood v. Stancil
CourtCourt of Appeals for the Tenth Circuit
Date FiledOctober 29, 2026
Docket26-1042
StatusUnpublished
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Full Opinion
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FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 29, 2026
_________________________________
Christopher M. Wolpert
Clerk of Court
MARVIN HOPGOOD,
Plaintiff - Appellant,
v. No. 26-1042
(D.C. No. 1:25-CV-01765-LTB-RTG)
ANDRE (MOSES) STANCIL, Executive (D. Colo.)
Director; CORECIVIC, INC., d/b/a
Crowley County Correctional Facility
(C.C.C.F.); BARRY GOODRICH,
Warden; STEVEN BROWN, Assistant
Warden; HOPE MARMOLEJO, Chief of
Unit Management; KATHERINE
JOHNSON, Unit Manager; VICTORIA
DENBAUGH, Grievance Coordinator;
DANIEL BARBEROS, Chief of Security,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before MORITZ, BALDOCK, and EID, Circuit Judges. **
_________________________________
*
This order and judgment is not binding precedent, except under the doctrines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.
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.
Appellate Case: 26-1042 Document: 21 Date Filed: 10/29/2026 Page: 2
Plaintiff Marvin Hopgood is in the custody of the Colorado Department of
Corrections at the Crowley County Correctional Facility, a private facility under
contract with the State of Colorado and run by Defendant CoreCivic, Inc. Plaintiff,
proceeding pro se, filed an amended complaint (AC) asserting three claims against
CoreCivic, its executive director, and prison officials under 42 U.S.C. § 1983. In claim
one, Plaintiff alleges that after he filed a grievance over Defendants’ refusal to allow
him to use his prison-issued tablet computer in the dayroom, Defendants retaliated
against him by removing him from the “Webuild Vocational Trade Program” (WVTP),
transferring him to another housing unit, raising his security level, and interfering with
the grievance process, in violation of his Fourteenth Amendment rights to due process
and equal protection. In claim two, Plaintiff contends Defendants deprived him of his
liberty and property interests in participating in the WVTP, in violation of the
Fourteenth Amendment’s guarantee to due process. In claim three, Plaintiff contends
he was treated differently from two inmates who also used their tablet computers in
the dayroom but were not disciplined, in violation of the Fourteenth Amendment’s
guarantee to equal protection.
A magistrate judge (MJ) issued a 15-page written report to the district judge
(DJ) recommending that Plaintiff’s AC be dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(i). That subsection of § 1915 provides that where a prisoner brings a
civil lawsuit in forma pauperis, “the court shall dismiss the case at any time if the court
determines that . . . the action . . . is frivolous.” As to Plaintiff’s first claim, the MJ
explained it failed to state a cause of action (1) against CoreCivic’s executive director
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because the Eleventh Amendment barred suit against him in his official capacity,
(2) against CoreCivic itself because the claim failed to allege that his injury was the
result of its customs or policies, and (3) against the remaining Defendants because the
claim failed to allege facts, apart from a close temporal connection between his
grievance and termination, indicating any of them had retaliated against him for filing
a grievance. As to the second claim, the MJ explained that it too failed to state a cause
of action because the claim (1) did not allege facts linking Plaintiff’s alleged denial of
due process to each Defendant, and (2) did not allege facts establishing his
participation in the WVTP was constitutionally protected. Moving to the third claim,
the MJ explained it also did not state a claim against Defendants because (1) like the
second claim, it did not allege what each Defendant did or did not do that allegedly
violated his constitutional rights, in particular his right to equal protection, and (2) did
not allege facts demonstrating that he and the other two inmates referred to were
similarly situated.
In his “Report & Recommendation,” (R&R) the MJ informed Plaintiff that his
failure to file specific objections with the DJ within 14 days of service may bar him
“from appealing the factual findings and legal conclusions of the [MJ] that are accepted
and adopted by the [DJ].” The MJ further informed Plaintiff that any objections “must
specifically identify those findings and recommendations to which the objections are
being made” and that the [DJ] “need not consider frivolous, conclusive or general
objections.” Thereafter, Plaintiff objected to the MJ’s R&R. Regarding his first claim,
Plaintiff stated only that the AC “alleges he was removed from his vocational program,
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reclassified, and subjected to grievance interference immediately after filing
grievances.” Plaintiff objected to dismissal of his second claim stating only that
“[a]rbitrary deviation from prison regulations and punitive classification consequences
implicate due process.” Finally, Plaintiff objected to dismissal of his third claim
stating he was treated differently than two inmates who were in the same housing unit
as Plaintiff, used their table computers in the prison dayroom, and were not terminated
from the WVTP. As to each claim, Plaintiff referenced without discussion both his
original and AC and the 15 pages of exhibits attached to his original complaint. He
also stated as to each claim that he “specifically named each involved defendant . . .
and the action(s) he/she committed/participated in, or ignored.” This was the extent of
Plaintiff’s objections.
The DJ originally adopted the MJ’s R&R and dismissed Plaintiff’s AC because,
applying the mailbox rule found in Fed. R. Civ. P. 6, Plaintiff filed his objections one
day too late. After Plaintiff filed a motion to alter the judgment under Fed. R. Civ. P.
59(e) establishing that he had not received the MJ’s report until after the date
presumed, the DJ entered an order denying said motion because “even accepting”
Plaintiff’s argument that his objections to the MJ’s report were timely, “the objections
were not sufficiently specific to trigger de novo review.” The DJ explained that
Plaintiff asserted “generally” in his objections that he provided sufficient factual
allegations in the original and AC and the 15 pages of attachments to the original
complaint. But the court was not required to consider facts not contained in the
operative pleading, in this case the AC. Nor was the court required to search the record
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to support Plaintiff’s “generalized” factual arguments. With respect to new factual
allegations related to Plaintiff’s equal protection claim contained in the objections but
not the AC, the court concluded Plaintiff could not amend the AC by alleging new facts
in his objections.
Plaintiff timely appealed. We exercise jurisdiction under 28 U.S.C. § 1291, and
because we agree with the district court that Plaintiff’s general objections to the MJ’s
R&R were insufficient to preserve his legal issues for appellate review, we dismiss the
appeal on the basis of the “firm-waiver rule.” Subsection (b)(2) of Fed. R. Civ. P. 72
provides in relevant part that “[w]ithin 14 days after being served with a copy of the
recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations.” (emphasis added). In United States v. One
Parcel of Real Property, 73 F.3d 1057, 1060 (10th Cir. 1996), we relied on the purposes
underlying the Federal Magistrates Act, 28 U.S.C. § 636, to hold “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.”
(emphasis added). “The firm waiver rule applies . . . when a plaintiff has made ‘general
objections” if those objections are not ‘sufficiently specific to focus the district court’s
attention on the factual and legal issues that a truly in dispute.’” Laham v. City of
Maize, 2026 WL 2983718 at *2 (10th Cir. 2026) (unpublished) (quoting One Parcel,
73 F.3d at 1060).
In this case, Plaintiff’s curt objections to the MJ’s R&R largely consisting of
conclusory allegations speak for themselves. As for his first two claims, Plaintiff failed
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to provide the district court with any specific explanation as to why the MJ’s analysis
of the AC was erroneous. He pointed to nothing in his AC which even remotely
suggests the MJ erred in reading its allegations and recommending dismissal of the
complaint. As for his third claim, Plaintiff does specifically tell us for the first time in
his objections that two inmates residing in his housing unit uses their tablets in the day
room and were not terminated from the WTVP as he was. But all the AC’s third claim
offers by way of factual allegations is the conclusory statement that “Plaintiff was
treated differently from similarly situated inmates who committed the same conduct
but were not disciplined or terminated from their work programs.” Plaintiff offers no
explanation why his revised facts were not contained in the AC and has not identified
any factor to persuade us to apply the interests-of justice exception to the firm-waiver
rule. See Licerio v. Lamb, 2022 WL 4100400 at *3 (10th Cir. 2022) (unpublished); see
also One Parcel, 73 F.3d at 1060 (explaining the firm-waiver rule “as a procedural bar
need not be applied when the interests of justice so dictate”).
Accordingly we grant Plaintiff’s motion to proceed on appeal in forma pauperis
(IFP) pursuant to 28 U.S.C. § 1915(a) and dismiss Plaintiff’s appeal on the basis of the
firm-waiver rule. We remind Plaintiff that he remains obligated to continue making
partial payments to the Clerk of Court until the entire filing fee has been paid in full.
We have no occasion to address the district court’s determination under
§ 1915(e)(2)(B)(i) that Plaintiff’s action was frivolous.
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IFP GRANTED; APPEAL DISMISSED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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