CRAIG B. SHAFFER, Magistrate Judge.
THIS MATTER comes before the court on pro se Plaintiff Akeem Makeen's Corrected Verified Petition and Application for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (doc. #60) and Mr. Makeen's Verified Emergency Motion for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (doc. #103). The former motion seeks an order "requiring Defendants State of Colorado and Denver City and County to enforce the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, Colorado Anti-Discrimination Act ("CADA"), and C.R.S. § 13-90-201" by requiring "Defendants to appoint Ms. Leta Holden to serve as his note taker at every court hearing and . . . to compensate her at the rate of $300.00 an hour." The more recently filed motion for temporary injunctive relief asks the court to "direct [the] City to retain a competent attorney or other competent person to be Mr. Makeen[`s] note taker."
Plaintiff's pursuit of preliminary injunctive relief has been persistent. Mr. Makeen filed a Verified Petition and Application for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (doc. #24) on February 2, 2015. Defendant State of Colorado, as well as former Defendants Janel Bravo and Charla Branham (heretofore referred to as the "State Defendants"),
On April 1, 2015, Mr. Makeen filed his Verified Emergency Motion for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (doc. #103) against Defendant City and County of Denver. The City and County of Denver and State of Colorado filed separate responses (docs. #108 and 109, respectively) on June 22, 2015. Plaintiff filed a Reply to Defendant City's Response (doc. #110) on June 30, 2015.
This court held an evidentiary hearing in this case on May 5, 2015. At that time, I determined that Mr. Makeen's original Verified Petition and Application for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (doc. #24) was moot in light of the subsequently filed Corrected Verified Petition and Application for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (doc. #60). This court has carefully considered the voluminous briefing submitted by the parties and their attached exhibits, a transcript of the May 5, 2015 hearing, the entire court file and applicable case law. For the following reasons, the court recommends that Mr. Makeen's motions for preliminary injunctive relief be denied.
Plaintiff commenced this action on December 23, 2014, with the filing of a Complaint (doc. #1) that asserted violations of the Americans with Disabilities Act, 42 U.S.C. §§12102-12213, the Rehabilitation Act, 29 U.S.C. § 794, and the First, Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments, as well as state law contract and tort claims. The Complaint generally alleged that these violations stemmed from Defendants' failure to "provide services to Mr. Makeen so he could access the court and participate fully in all hearings after being approved for services." See Complaint, at 1. Mr. Makeen asserted claims against the State of Colorado, Janel Bravo in her official and individual capacities, Charla Branham in her official capacity, and the Arapahoe County Board of County Commissioners.
More recently, the court granted Mr. Makeen's Fifth Motion for Leave to Amend Complaint (doc. #114). Plaintiff's Fifth Amended Complaint is directed only against the State of Colorado and Denver City and County. This pleading alleges that Mr. Makeen was denied access to state courts and was prevented from participating equally in all hearings in those courts after being denied a qualified or appropriate note taker as an accommodation for his disabilities. The specific state court actions cited in the Fifth Amended Complaint are: (1) Rufner v. Makeen, 2014CV31886 (Arapahoe County District Court); (2) Makeen v. Hailey, 2014CV253 (Arapahoe County District Court); (3) Makeen v. Hopf, 15C00003 (County Court for the City and County of Denver); (4) Makeen v. Anthony, 12C00787 (County Court for the City and County of Denver); and (5) Woodstream Falls v. Makeen, 15CV030561 (Denver District Court). More specifically, Mr. Makeen brings claims under Title II of the ADA, the Rehabilitation Act, various constitutional amendments, and the Colorado Anti-Discrimination Act, C.R.S. §§ 24-34-801, et seq. The Fifth Amended Complaint also asserts claims for breach of contract, breach of the duty of good faith and fair dealing, promissory estoppel, unjust enrichment, fraudulent misrepresentation, and intentional infliction of emotional distress. Mr. Makeen requests, inter alia, declaratory relief, preliminary and permanent injunctive relief,
On February 2, 2015, Mr. Makeen filed a Request for Accommodation under Americans with Disabilities Act Pursuant [to] D.C.COLO.LCivR 83.3 (doc. #23). This three-page motion asserted, without supporting documentation, that Mr. Makeen "has been a qualified individual with a disability and is need of a (auxiliary aids-note taker)" for purposes of the status conference set on this court's calendar for March 17, 2015. Plaintiff claimed that "[o]ne of [his] disabilities is auditory processing deficits which influence his reading skills, his spelling skills, his ability to communicate, and more importantly, his ability to get the signal value of what is spoke to him." Mr. Makeen asserted that a note-taker enables him "to be able to effectively communicate and understand." Accordingly, Mr. Makeen asked this court "to appoint Ms. Leta Holden as [his] (auxiliary aids-note taker)" at her hourly rate of $300.00.
This court granted, in part, Mr. Makeen's Request for Accommodation with an Order (doc. #27), dated February 19, 2015. After noting The Judicial Conference Guidelines for Services to the Hearing Impaired and Other Persons with Communications Disabilities, I ordered that Mr. Makeen should be provided with a computer-assisted real-time (CART) court reporter at the March 17, 2015 status conference and that he also should be mailed a "copy of the courtroom minutes, which summarize the content of the hearing, including any established deadlines and orders, as well as instructions on how to order, at his own expense, an official court transcript." I denied Mr. Makeen's request to the extent it sought "court authorization for Ms. Holden to serve as a note-taker."
The status conference on March 17, 2015 lasted 63 minutes. During the conference, the court discussed Mr. Makeen's request for preliminary injunctive relief, pointing out that the motion did not address specifically the required elements for injunctive relief under Fed. R. Civ. P. 65. Mr. Makeen indicated that he could cure this potential shortcoming in a supplemental submission that he would file in 24 hours.
See Transcript of Proceedings on March 17, 2015, at 28-30. Mr. Makeen prefers that Ms. Holden serve as his note taker because "from working with her for so many years, I can follow her notes . . . because she knows the subject matter." Id. at 31.
The court held an evidentiary hearing on the pending motions for injunctive relief on May 5, 2015. Ms. Leta Holden sat with Mr. Makeen at counsel's table throughout the hearing, and at various times appeared to be writing on a pad of paper. At the outset of that hearing, I asked Mr. Makeen to update the court on the status of his various state court actions. Plaintiff advised that a final judgment had been entered in Makeen v. Hopf.
On May 5, 2015, this court also asked Mr. Makeen to more precisely state the preliminary injunctive relief sought in the pending Rule 65 motions. Plaintiff stated that "[b]asically, what I'm asking the court is to please direct the State of Colorado and the City and County of Denver to provide me with either Ms. Holden, Ms. Leta Holden, or a qualified note taker to be with me in any and all court proceedings within — any and all court proceedings within the State of Colorado." See Transcript of Proceedings on May 5, 2015 (doc. #122), at 14.
In moving for preliminary injunctive relief, Mr. Makeen contends that the Defendants have violated his rights and continue to violate his rights in the above-referenced state court actions. According to Mr. Makeen, on October 24, 2014 the Arapahoe County District Court in Rufner v. Makeen approved his request for a note taker and permitted Ms. Holden to sit at counsel table. On November 12, 2014, Mr. Makeen was told that his "request for a note taker under the ADA was approved you can have your wife sit at the table with you." See Plaintiff's Memorandum of Points and Authorities (doc. #90), at 9. On November 17, 2014, "Ms. Bravo, State ADA coordinator sent Mr. Makeen a email stating that Ms. Holden was approved as his note taker at $8.00 an hour." Id. at 10. Mr. Makeen claims that on November 19, 2014, "no note taker appeared" for the scheduled hearing.
In his second case, Makeen v. Hailey, Plaintiff states that his request for a note taker was approved, but when he arrived for a hearing on December 30, 2014, he was provided with CART, even though the appropriate authorities were aware that equipment could cause him to have seizures. Id. at 11.
Mr. Makeen claims that in Makeen v. Hopf, he requested the services of a note taker on January 16, 2015 for a hearing scheduled on January 27, 2015 in County Court for the City and County of Denver. According to Mr. Makeen, Suzanne Razook initially offered to provide CART, but later on January 21, 2014 indicated that "the City and County of Denver was willing to pay Ms. Holden $25.00 an hour for her services" as a note taker. Ms. Rezook stated that if Ms. Holden insisted on a higher hourly rate, the City and County could then only offer CART. Id. at 13. Mr. Makeen declined to use CART and asked for another note taker. On January 23, 2015, Ms. Razook informed Mr. Makeen that she had found an alternative note taker who would be available at the January 27, 2015 hearing. Mr. Makeen contends that the assigned note taker, Ms. Barbi Frias, did not perform to his satisfaction, because she wrote down "`word for word' what [was] being said" and "most of what she wrote was inaccurate." Id. at 13. On February 25, 2015, the trial judge dismissed the complaint in Makeen v. Hopf.
In his fourth case, Makeen v. Anthony, Plaintiff claims that he requested the assistance of a note taker for a hearing scheduled for April 23, 2015. Ms. Frias again was assigned, even though Mr. Makeen had previously complained that she was incompetent, that he could not understand her notes and those notes were inaccurate. Moreover, Mr. Makeen claims that "at no time" did Ms. Frias ask "how he would like her to present her notes." For this hearing, Ms. Frias took her notes using an electronic tablet which Mr. Makeen claims prevented him "from reviewing the notes during the hearing to completely understand what was going on because he could not see what she was typing." Id. at 15.
Finally, in his fifth case, Woodstream Falls v. Makeen, the Plaintiff insists that he asked for the services of a note taker. Although that request was approved, Mr. Makeen was told that the assigned note taker "will not interpret what she thinks she heard, but rather capture the speakers' words as closely as possible rather than trying to summarize." Id. Mr. Makeen also asserts that the note taker assigned to an April 23, 2015 hearing was "incompetent" because "she wrote on purple paper, thus making it unreadable during the hearing." Plaintiff further claims that the assigned "note taker refused to tell Mr. Makeen what other cases she had provided noting taking services." Id. at 17.
During the evidentiary hearing on May 5, 2015, Mr. Makeen called as a witness, Kelly Boe, who is the District Administrator for the Denver District and Juvenile Court in the Second Judicial District. Ms. Boe explained that she is employed by the State of Colorado and is responsible for "taking care of the business end of the court." See Transcript of Proceedings on May 5, 2015, at 21. Ms. Boe testified that on October 31, 2014, she sent an email to Leta Holden in response to a invoice Ms. Holden had submitted in "case 14CV356" requesting payment for "interpreting services" at the rate of $300.00 hour. Apparently, the trial judge had approved the request for Ms. Holden's services in that case and directed that Ms. Holden would be acting in the role of an interpreter. Id. at 28. Ms. Boe testified that the authorized compensation rate for an uncertified interpreter was $35.00 per hour as set forth in Chief Justice Directive 0603. Id. at 28. After advising Ms. Holden that she would be required to complete a W-9 to receive compensation "as a vendor in the state accounts payable system," see Plaintiff's Exhibit 1, Ms. Boe never heard back from Ms. Holden. Ms. Boe also stated that during the three and a half years she has served as the District Administrator for the Denver District and Juvenile Court, she has never received a request for a note taker and was not aware of a "job description within the [judicial] branch for a note taker" or an established compensation rate for a note taker. Id. at 29-30.
Defendants offered at the evidentiary hearing the testimony of Ms. Cheri Davis, who is the Legal Auxiliary Service Manager at the Colorado Commission for the Deaf and Hard of Hearing. Ms. Davis testified that she provides "the sign language interpreters and CART providers for the state courts." Id. at 39. A sign language interpreter assigned to assist in a court case is paid between $53.00 and $60.00 per hour. Ms. Davis recalled that she received an inquiry from Mr. Makeen asking about note-taking services that the Commission might provide. Ms. Davis explained to Mr. Makeen that she did not know of any note takers and she was not aware of any certification for note takers. Id. at 41. Mr. Makeen later contacted Ms. Davis and advised her that he had gone to a court proceeding with a note taker, but that the court in that case would not compensate his note taker. Ms. Davis told Mr. Makeen that any further inquiries should be directed to Kelly Boe at the Second Judicial District. Id. at 42. Ms. Davis also testified that during the eight years that she has been employed by the Commission for the Deaf and Hard of Hearing, she has never received a request for a note taker, but that when a court approves a request for a sign language interpreter or CART, payment for those services is processed and made by the Commission, not the specific court that approves the request. Id. at 46.
Defendants also called Ms. Rezook to testify. Ms. Rezook, for the past nine years, has been the Director of Human Resources and ADA Coordinator for the Denver County Court. Id. at 48. Ms. Rezook explained that in January 2015, she received a request from Mr. Makeen for a note taker.
Finally, Defendants called Ms. Frias as a witness. Ms. Frias explained that she is currently employed by the Sisters of Charity of Leavenworth Health Systems as an aide in the legal department. Id. at 65-66. On May 5, 2015, Ms. Frias was attending Arapahoe Community College and taking classes in the field of paralegal studies. Ms. Frias' employment history includes working as a para-educator assisting youth with cognitive disabilities, and in that capacity she occasionally provided note-taking assistance. Id. at 67. Also, as part of her paralegal training, Ms. Frias had been required to observe court proceedings and take notes. Id. at 78.
Ms. Frias answered the County Court's solicitation for a note taker and provided Ms. Rezook with her resume. After she was assigned to assist Mr. Makeen, she spoke with him by telephone briefly before the court hearing. Id. at 68. Ms. Frias claims that Mr. Makeen provided little direction as to what he expected or how she should perform her note-taking duties.
Id. at 69.
Ms. Frias testified that once Ms. Rezook explained to Mr. Makeen that Ms. Frias had not been appointed to provide legal advice, Mr. Makeen "seemed mostly disinterested in my being there" and "[t]here wasn't any direction given on what the notes were for." Id. at 70. Ms. Frias also volunteered that "[a]fter witnessing Mr. Makeen represent himself, he seemed more than competent. He didn't at all seem to have an auditory issue." Id. at 71. In response to Mr. Makeen's cross-examination, Ms. Frias explained that at the first hearing, she "tried to put down as much as I could." Id. at 77. But Ms. Frias also had the impression that Mr. Makeen was not utilizing her notes or looking at her notes at either hearing she attended.
At the second hearing for which she served as Mr. Makeen's note taker, Ms. Frias used a electronic tablet, in lieu of a pen and paper. Ms. Frias testified that Mr. Makeen did not object to the tablet or ask her to take her notes on paper. Id. at 74. Ms. Frias explained that after the hearing, she "asked Mr. Makeen if he would prefer the notes be sent in Word or PDF format. He said PDF was fine. So, I e-mailed those, and that was it." Id. at 74.
In response to the court's questions, Ms. Frias testified that she saw Ms. Holden at the first hearing Ms. Frias attended as Mr. Makeen's note taker. According to Ms. Frias,
Id. at 80.
Plaintiff insists that he is likely to succeed on the merits of his claim under Title II of the ADA, given that he "is a qualified individual under the ADA" and that Defendants have "repeatedly refused to provide [him] with a qualified (auxiliary aids-note taker) which he repeatedly requested." See Plaintiff's Corrected Verified Petition and Application (doc. #6), at 2-3. Mr. Makeen further asserts that without preliminary injunctive relief he will "be denied access to the court and equal protection as he won't be able to effectively communicate equally as others to be heard." See Plaintiff's Memorandum of Points and Authorities (doc. #90), at 5.
"The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held." University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). "[B]ecause a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." Fundamentalist Church of Jesus Christ of Latter-Day Saints v. Horne, 698 F.3d 1295, 1301 (10
The Tenth Circuit recognizes three types of disfavored preliminary injunctions: (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions that require a party to take some affirmative act rather than refrain from some act; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits. O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10
For purposes of applying Rule 65, "the status quo is `the last uncontested status between the parties which preceded the controversy until the outcome of the final hearing.'" Dominion Video Satellite, Inc., 269 F.3d at 1155 (quoting SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1100 n.8 (10
Here, Mr. Makeen seeks an order requiring the Defendants to appoint Ms. Holden as his "note taker at all court proceedings"
This court also acknowledges that Rule 65 requires that an order granting an injunction must "state its terms specifically" and "describe in reasonable detail . . . the act or acts restrained or required." See Fed. R. Civ. P. 65(d)(1)(B) and (C).
Keyes v. School District No. 1, Denver, Colorado, 895 F.2d 659, 668 (10
Based upon the available record, I find that Plaintiff has not sustained his heightened burden of establishing all of the required factors for injunctive relief. "To constitute irreparable harm, an injury must be certain, great, actual and not theoretical." Schrier, 427 F.3d at 1267 (citation omitted). Even "serious or substantial harm is not irreparable harm." Id. Where a plaintiff alleges a constitutional violation, a court may presume that a resulting injury is irreparable to the extent that it cannot be redressed by post-trial relief.
I find that Mr. Makeen has not come forward with sufficient facts to demonstrate that he will suffer irreparable harm unless the requested injunctive relief is provided. The available record shows that Defendants have agreed to provide Mr. Makeen with a note taker. Mr. Makeen insists that Ms. Frias has not met his specific needs or expectations, and does not compare favorably to his preferred note taker, Ms. Holden. I cannot discount the possibility that Mr. Makeen's frustrations stem, at least in part, from his belief that any note taker provided by Defendants must match Ms. Holden's abilities in all respects and should be expected to immediately grasp a method of courtroom interaction that Mr. Makeen and Ms. Holden have developed over several years. Perhaps the harm that Mr. Makeen is claiming is partly the product of his own impatience or inadequate communication with the provided note taker. I am not convinced, from the available record, that this "harm" is substantial or irreparable.
It is also incorrect to suggest that Defendants have deprived Mr. Makeen of Ms. Holden's services as a note-taker. Defendants have expressed their willingness to compensate Ms. Holden, albeit at a rate substantially less than her preferred $300.00 per hour. Defendants' proposed compensation, coupled with Mr. Makeen's Prayer for Relief (which includes "[r]eimbursement for all costs including attorney fees/note taker fees for the cost of Ms. Leta Holden"), belie Plaintiff's claim of irreparable harm.
As previously noted, Mr. Makeen did not have the services of a note taker during the status conference with this court on March 17, 2015. Yet Mr. Makeen freely acknowledged that he was fully able to understand and participate in those proceedings because I repeated my comments and questions from the bench. I am not prepared to presume that state judges would be less inclined to provide the same degree of clarity, particularly if Mr. Makeen asked for clarification during court proceedings. Mr. Makeen also demonstrated the same competence during the May 5, 2015 evidentiary hearing. As I told Plaintiff on the record, "in the two hearings that I've had, one with Ms. Holden [and] one without Ms. Holden, in both hearings you have done a very successful, a very commendable job as a pro se litigant." See Transcript of Proceedings on May 5, 2015, at 108.
Because Mr. Makeen is seeking a disfavored type of preliminary injunction, it is not enough that he raise serious or substantial questions going to the merits of his claims. Rather, Plaintiff must demonstrate a "substantial" likelihood of success on the merits and must carry this burden by a "strong showing." AssociationVoice, Inc. v. AtHomeNet, Inc., No. 10-cv-00109-CMA-MEH, 2011 WL 63508, at *5 (D. Colo. Jan. 6, 2011). While Mr. Makeen's Fifth Amended Complaint asserts several claims that raise factual and legal issues, the current record presented by Plaintiff does not strongly demonstrate a substantial likelihood of success on the merits.
Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any such entity." See 42 U.S.C. § 12132. Similarly, Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." See 29 U.S.C. § 794(a).
Certainly, in determining what auxiliary aids are appropriate in a particular circumstance, the public entity should "give primary consideration to the requests of the [individual] with disabilities." See 28 C.F.R. § 35.160(b)(2). However, the public entity's obligation to make "reasonable accommodation" does not mean that the entity must "provide a disabled individual with every accommodation he requests or the accommodation of his choice." Dean v. University at Buffalo School of Medicine and Biomedical Sciences, 804 F.3d 178, 187 (2d Cir. 2015). See also Gevarzes v. City of Port Orange, Florida, No. 12-cv-1126-Orl-37DAB, 2013 WL 6231269, at *2 (M.D. Fla. Dec. 2, 2013) (in a case where a deaf plaintiff alleged that the defendant City had failed to reasonably accommodated his disability by providing an interpreter during his arrest, the court observed that "[e]ffective communication does not require perfect communication"). Title II of the ADA does not impose a strict liability standard on a public entity simply because the disabled individual did not receive the precise auxiliary aid requested. Valanzuolo v. City of New Haven, 972 F.Supp.2d 263, 274 (D. Conn. 2013).
For Mr. Makeen to establish a violation of Title II of the ADA or § 504 of the Rehabilitation Act:
Valanzuolo, 972 F. Supp. 2d at 273 (internal citations omitted).
Thus, Mr. Makeen's likelihood of success on the merits of his federal claims hinges, in large part, on the question of whether the Defendants provided "appropriate auxiliary aids." As noted previously, this is a fact-specific inquiry that must address the totality of the circumstances in this case. Fairly construed, the available record simply suggests a dispute as to the reasonableness of the accommodations provided by Defendants and whether those accommodations sufficed to provide Mr. Makeen with meaningful access to the state courts. That factual/legal dispute is not appropriate for disposition in the context of a motion for preliminary injunction. Cf. Hibbert v. Bellmawr Park Mutual Housing Corp., 937 F.Supp.2d 565, 575 (D. N.J. 2013) (noting that "[w]hat auxiliary aids would be required is a fact-sensitive issue that must be considered within the parameters of what is meant by `effective communication'" and that "the effectiveness of auxiliary aids and/or services is [typically] a question of fact precluding summary judgment"). See also Bravin v. Mount Sinai Medical Center, 186 F.R.D. 293, 302 (S.D.N.Y. 1999) (noting that "[w]hat constitutes `effective communication' is a question of fact"). More to the point, the present factual record does not clearly demonstrate that Mr. Makeen has a substantial likelihood of success on the merits.
For the foregoing reasons, this court RECOMMENDS that Plaintiff Makeen's Corrected Verified Petition and Application for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (doc. #60) and his Verified Emergency Motion for Temporary Restraining Order and Order to Show Cause Why a Preliminary Injunction Should Not Issue (doc. #103) be denied.
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings 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); 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. One Parcel of Real Property Known As 2121 East 30th Street, Tulsa, Oklahoma, 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 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 and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court's decision to review a Magistrate Judge's recommendation de novo despite the lack of an objection does not preclude application of the "firm waiver rule"); International Surplus Lines Insurance Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the Magistrate Judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge's ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).
See Transcript of Proceedings on May 5, 2015, at 1221-22. Mr. Makeen's expectations for a note taker are strikingly at odds with the responsibilities of a sign-language interpreter or the assistance that CART provides the hearing-impaired. Both the sign-language interpreter and CART provide a verbatim account with no expectation of editing or analysis. In contrast, Mr. Makeen apparently expects a note taker to understand the substance or significance of what is being said in the courtroom, to note the particular information that Mr. Makeen might find most helpful, and to convey that information in a manner that Mr. Makeen can most effectively assimilate during the court proceeding.
Mr. Makeen conceded that the court's observations were accurate. See Transcript of Proceedings on May 5, 2015, at 121.
