Mora v. Bernalillo County Metropolitan Detention Center
MEMORANDUM OPINION AND ORDER by District Judge James O. Browning, adopting the Magistrate Judge's Report and Recommendations 35 and granting the Defendants' Motion for Summary Judgment on the Basis of Lack of Personal Participation, Qualified Immunity and Other Grounds 33 (meq)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CIV 14-0265 JB/GBW
SERGEANT C. OWENS and
SERGEANT C. GRIEGO,
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Magistrate Judge’s Report and
Recommendations, filed September 29, 2017 (Doc. 35)(“PFRD”), recommending that the Court
grant the Defendants’ Motion for Summary Judgment on the Basis of Lack of Personal
Participation, Qualified Immunity and Other Grounds, filed July 10, 2017 (Doc. 33)(“MSJ”).
Neither party has filed Objections to the PFRD. The Court concludes that the PFRD is not
clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion. Upon review of
the record and otherwise being fully advised, the Court adopts the Honorable Gregory B.
Wormuth’s, United States Magistrate Judge, PFRD, and the MSJ is granted.
LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
District courts may refer dispositive motions to a Magistrate Judge for a recommended
disposition. See Fed. R. Civ. P. 72(b)(1) (“A magistrate judge must promptly conduct the
required proceedings when assigned, without the parties’ consent, to hear a pretrial matter
dispositive of a claim or defense . . . .”). Rule 72(b)(2) of the Federal Rules of Civil Procedure
governs objections: “Within 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.” Fed. R. Civ. P. 72(b)(2). Finally, when resolving objections to a Magistrate
Judge’s proposal, “[t]he district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or return the matter to the magistrate
judge with instructions.” Fed. R. Civ. P. 72(b)(3). Similarly, 28 U.S.C. § 636 provides:
A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
28 U.S.C. § 636(b)(1)(C).
“‘The filing of objections to a magistrate’s report enables the district judge to focus
attention on those issues -- factual and legal -- that are at the heart of the parties’ dispute.’”
United States v. One Parcel of Real Property, with Buildings, Appurtenances, Improvements &
Contents, 73 F.3d 1057, 1059 (10th Cir. 1996)(quoting Thomas v. Arn, 474 U.S. 140, 147
(1985))(“One Parcel”). As the United States Court of Appeals for the Tenth Circuit has noted,
“the filing of objections advances the interests that underlie the Magistrate’s Act, including
judicial efficiency.” One Parcel, 73 F.3d at 1059 (citing Niehaus v. Kan. Bar Ass’n, 793 F.2d
1159, 1165 (10th Cir. 1986); United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981)).
The Tenth Circuit has held “that 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.” One Parcel, 73 F.3d at 1060. “To further advance the
The Magistrate’s Act is codified at 28 U.S.C. §§ 631-39.
policies behind the Magistrate’s Act, [the Tenth Circuit], like numerous other circuits, [has]
adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely objections to the
magistrate’s findings or recommendations waives appellate review of both factual and legal
questions.’” One Parcel, 73 F.3d at 1059 (citations omitted). In addition to requiring specificity
in objections, the Tenth Circuit has stated that “[i]ssues raised for the first time in objections to
the magistrate judge’s recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421,
1426 (10th Cir. 1996). See United States v. Garfinkle, 261 F.3d 1421, 1426 (10th Cir. 1996)(“In
this circuit, theories raised for the first time in objections to the magistrate judge’s report are
The Tenth Circuit stated that “the district court correctly held that [a
petitioner] had waived [an] argument by failing to raise it before the magistrate.” Pevehouse v.
Scibana, 229 F. App’x 795, 796 (10th Cir. 2007)(unpublished).2
In One Parcel, the Tenth Circuit, in accord with the other United States Courts of
Appeals, expanded the waiver rule to cover objections that are timely but too general. See One
Parcel, 73 F.3d at 1060. The Supreme Court of the United States of America -- in the course of
approving the United States Court of Appeals for the Sixth Circuit’s use of the waiver rule -- has
Pevehouse v. Scibana is an unpublished opinion, but the Court can rely on an
unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See
10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited for their
persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its
disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes that
Pevehouse v. Scibana has persuasive value with respect to a material issue, and will assist the
Court in its disposition of this Memorandum Opinion and Order.
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 House and Senate Reports
accompanying the 1976 amendments do not expressly consider what sort of
review the district court should perform when no party objects to the magistrate’s
report. See S. Rep. No. 94-625, pp. 9-10 (1976)(“Senate Report”); H.R. Rep. No.
94-1609, p. 11 (1976), U.S. Code Cong. & Admin. News 1976, p. 6162 (“House
Report”). There is nothing in those Reports, however, that demonstrates an intent
to require the district court to give any more consideration to the magistrate’s
report than the court considers appropriate. Moreover, the Subcommittee that
drafted and held hearings on the 1976 amendments had before it the guidelines of
the Administrative Office of the United States Courts concerning the efficient use
of magistrates. Those guidelines recommended to the district courts that “[w]here
a magistrate makes a finding or ruling on a motion or an issue, his determination
should become that of the district court, unless specific objection is filed within a
reasonable time.” See Jurisdiction of United States Magistrates, Hearings on S.
1283 before the Subcommittee on Improvements in Judicial Machinery of the
Senate Committee on the Judiciary, 94th Cong., 1st Sess., 24 (1975)(emphasis
added)(“Senate Hearings”). The Committee also heard the Honorable Judge
Metzner of the Southern District of New York, the chairman of a Judicial
Conference Committee on the administration of the magistrate system, testify that
he personally followed that practice. See Senate Hearings at 11 (“If any
objections come in, . . . I review [the record] and decide it. If no objections come
in, I merely sign the magistrate’s order.”). The Judicial Conference of the United
States, which supported the de novo standard of review eventually incorporated in
§ 636(b)(1)(C), opined that in most instances no party would object to the
magistrate’s recommendation, and the litigation would terminate with the judge’s
adoption of the magistrate’s report. See Senate Hearings at 35, 37. Congress
apparently assumed, therefore, that any party who was dissatisfied for any reason
with the magistrate’s report would file objections, and those objections would
trigger district court review. There is no indication that Congress, in enacting §
636(b)(1)(C), intended to require a district judge to review a magistrate’s report to
which no objections are filed. It did not preclude treating the failure to object as a
procedural default, waiving the right to further consideration of any sort. We thus
find nothing in the statute or the legislative history that convinces us that
Congress intended to forbid a rule such as the one adopted by the Sixth Circuit.
Thomas v. Arn, 474 U.S. at 151-52 (footnotes omitted).
The Tenth Circuit also noted, “however, that ‘[t]he waiver rule as a procedural bar need
not be applied when the interests of justice so dictate.’” One Parcel, 73 F.3d at 1060 (quoting
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)(“We join those circuits that have
declined to apply the waiver rule to a pro se litigant’s failure to object when the magistrate’s
order does not apprise the pro se litigant of the consequences of a failure to object to findings and
recommendations.” (citations omitted))). Cf. Thomas v. Arn, 474 U.S. at 154 (noting that, while
“[a]ny party that desires plenary consideration by the Article III judge of any issue need only
ask,” a failure to object “does not preclude further review by the district judge, sua sponte or at
the request of a party, under a de novo or any other standard”). In One Parcel, the Tenth Circuit
noted that the district judge had decided sua sponte to conduct a de novo review despite the lack
of specificity in the objections, but the Tenth Circuit held that it would deem the issues waived
on appeal because it would advance the interests underlying the waiver rule. See 73 F.3d at
1060-61 (citing cases from other Courts of Appeal where district courts elected to address merits
despite potential application of waiver rule, but Courts of Appeal opted to enforce waiver rule).
Where a party files timely and specific objections to the Magistrate Judge’s proposed
findings and recommendation on “dispositive motions, the statute calls for a de novo
determination, not a de novo hearing.” United States v. Raddatz, 447 U.S. 667, 674 (1980).
“[I]n providing for a ‘de novo determination’ rather than de novo hearing, Congress intended to
permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to
place on a magistrate’s proposed findings and recommendations.” United States v. Raddatz, 447
U.S. at 676 (quoting 28 U.S.C. § 636(b))(citing Mathews v. Weber, 423 U.S. 261, 275 (1976)).
The Tenth Circuit requires a “district court to consider relevant evidence of record and not
merely review the magistrate judge’s recommendation” when conducting a de novo review of a
party’s timely, specific objections to the Magistrate Judge’s report. In re Griego, 64 F.3d 580,
583-84 (10th Cir. 1995). “When objections are made to the magistrate’s factual findings based
on conflicting testimony or evidence . . . the district court must, at a minimum, listen to a tape
recording or read a transcript of the evidentiary hearing.” Gee v. Estes, 829 F.2d 1005, 1008-09
(10th Cir. 1987).
A district court must “clearly indicate that it is conducting a de novo determination”
when a party objects to the Magistrate Judge’s report “based upon conflicting evidence or
testimony.” Gee v. Estes, 829 F.2d at 1009. On the other hand, a district court fails to meet 28
U.S.C. § 636(b)(1)’s requirements when it indicates that it gave “considerable deference to the
magistrate’s order.” Ocelot Oil Corp. v. Sparro Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). A
district court need not, however, “make any specific findings; the district court must merely
conduct a de novo review of the record.” Garcia v. City of Albuquerque, 232 F.3d 760, 766
(10th Cir. 2000). “[T]he district court is presumed to know that de novo review is required.
Consequently, a brief order expressly stating the court conducted de novo review is sufficient.”
Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996)(citing In re Griego, 64 F.3d at 58384). “[E]xpress references to de novo review in its order must be taken to mean it properly
considered the pertinent portions of the record, absent some clear indication otherwise.”
Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d 722, 724 (10th Cir. 1993). The Tenth
Circuit has held that a district court properly conducted a de novo review of a party’s evidentiary
objections when the district court’s “terse” order contained one sentence for each of the party’s
“substantive claims” and did “not mention his procedural challenges to the jurisdiction of the
magistrate to hear the motion.” Garcia v. City of Albuquerque, 232 F.3d at 766. The Tenth
Circuit has explained that brief district court orders that “merely repeat the language of §
636(b)(1) to indicate its compliance” are sufficient to demonstrate that the district court
conducted a de novo review:
It is common practice among district judges in this circuit to make such a
statement and adopt the magistrate judges’ recommended dispositions when they
find that magistrate judges have dealt with the issues fully and accurately and that
they could add little of value to that analysis. We cannot interpret the district
court’s statement as establishing that it failed to perform the required de novo
In re Griego, 64 F.3d at 584.
Notably, because “Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and
recommendations,” United States v. Raddatz, 447 U.S. at 676, a district court “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge,” 28 U.S.C. § 636(b)(1). See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d at
724-25 (holding that the district court’s adoption of the Magistrate Judge’s “particular
reasonable-hour estimates” is consistent with the de novo determination that 28 U.S.C. §
636(b)(1) and United States v. Raddatz require).
Where, as here, no party objects to the Magistrate Judge’s proposed findings and
recommended disposition, the Court has, as a matter of course and in the interests of justice,
reviewed the Magistrate Judge’s recommendations. In Pablo v. Soc. Sec. Admin., No. 11-0132,
2013 WL 1010401 (D.N.M. Feb. 27, 2013)(Browning, J.), the plaintiff failed to respond to the
Magistrate Judge’s proposed findings and recommended disposition, and thus waived his right to
appeal the recommendations, but the Court nevertheless conducted a review. See 2013 WL
1010401, at *1, *4. The Court stated that it generally does not, however, “review the [Proposed
Findings and Recommended Disposition] de novo, because the parties have not objected thereto,
but rather review[s] the recommendations to determine whether they are clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of discretion.” 2013 WL 1010401, at *4.
The Court, when there are no objections, does not determine independently what it would
do if the issues had come before the Court first, but rather adopts the proposed findings and
recommended disposition where “‘the Court cannot say that the Magistrate Judge’s
recommendation . . . is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion.’” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *3 (alterations and footnote
omitted)(quoting Workheiser v. City of Clovis, No. 12-0485, 2012 WL 6846401, at *3 (D.N.M.
Dec. 28, 2012)(Browning, J.)). See also Alexandre v. Astrue, No. 11-0384, 2013 WL 1010439,
at *4 (D.N.M. Feb. 27, 2013)(Browning, J.)(“The Court rather reviewed the findings and
recommendations . . . to determine if they are clearly erroneous, arbitrary, obviously contrary to
law, or an abuse of discretion. The Court determines that they are not, and will therefore adopt
the [Proposed Findings and Recommended Disposition].”); Trujillo v. Soc. Sec. Admin., No. 121125, 2013 WL 1009050, at *5 (D.N.M. Feb. 28, 2013)(Browning, J.)(adopting the proposed
findings and conclusions, and noting that “[t]he Court did not review the ARD de novo, because
Trujillo has not objected to it, but rather reviewed the . . . findings and recommendation to
determine if they are clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion, which they are not.”).
This review, which is deferential to the Magistrate Judge’s work when there is no
objection, nonetheless provides some review in the interest of justice and seems more consistent
with the waiver rule’s intent than no review at all or a full-fledged de novo review. Accordingly,
the Court considers this standard of review appropriate. See Thomas v. Arn, 474 U.S. at 151
(“There is nothing in those Reports, however, that demonstrates an intent to require the district
court to give any more consideration to the magistrate’s report than the court considers
appropriate.”). The Court is reluctant to have no review at all if its name is going at the bottom
of the order or opinion adopting the Magistrate Judge’s proposed findings and recommendations.
No party submitted any objections to the PFRD, and the Court will thus review it only to
determine whether it is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion. The Court concludes that the PFRD is not clearly erroneous, arbitrary, obviously
contrary to law, or an abuse of discretion, and it will thus adopt the PFRD as its own, and grant
IT IS ORDERED that: (i) the Magistrate Judge’s Report and Recommendations, filed
September 29, 2017 (Doc. 35) is adopted; and (ii) the Defendants’ Motion for Summary
Judgment on the Basis of Lack of Personal Participation, Qualified Immunity and Other
Grounds, filed July 10, 2017 (Doc. 33) is granted.
UNITED STATES DISTRICT JUDGE
Parties and Counsel:
Guadalupe County Correctional Facility
Santa Rosa, New Mexico
Plaintiff Pro Se
Carlos M. Quinones
Quinones Law Firm
Santa Fe, New Mexico
Attorney for the Defendants
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