Coriz v. Rodriguez et al
Filing
65
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by District Judge James O. Browning, Magistrate Judge Molzen's Proposed Findings and Recommended Disposition on Petitioners Motion t o Substitute the Current Governor as the Successive Officer in the Above-Captioned Case, 34 is adopted; Thomas Moquino, Jr., in his official capacity as Governor of the Kewa Pueblo, is substituted as a Respondent in place of Robert B. Coriz, in his official capacity as Governor of the Kewa Pueblo; Robert B. Coriz remains a Respondent in his official capacity as Tribal Court Judge; and Respondent Kewa Pueblo is dismissed. (meq)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DANIEL E. CORIZ,
Petitioner,
vs.
No. CIV 17-1258 JB\KBM
VICTOR RODRIGUEZ, ACTING WARDEN
Sandoval County Detention Center, Sandoval
County New Mexico,
ROBERT B. CORIZ, TRIBAL COURT
JUDGE and Governor for the Pueblo of Kewa,
and
KEWA PUEBLO (Also known as Santo
Domingo Pueblo),
Respondents.
MEMORANDUM OPINION AND ORDER
ADOPTING THE MAGISTRATE JUDGE’S PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Magistrate Judge Molzen’s Proposed
Findings and Recommended Disposition on Petitioner’s Motion to Substitute the Current
Governor as the Successive Officer in the Above-Captioned Case, filed June 7, 2018
(Doc. 34)(“PFRD”). On June 21, 2018, Petitioner Daniel E. Coriz filed objections to the PFRD.
See Petitioner Coriz’s Objections to Proposed Finds of Fact and Recommended Disposition
(Doc. 36)(“Objections”). The Court will overrule the Objections and adopt the PFRD.
PROCEDURAL BACKGROUND
D. Coriz filed his Petition for Writ of Habeas Corpus Pursuant to 25 U.S.C. § 1303, filed
December 22, 2017 (Doc. 1)(“Petition”), which names Respondent Robert B. Coriz, in both his
official capacity as Tribal Court Judge and Governor of the Kewa Pueblo, as a Respondent. See
Petition at 1. R. Coriz is no longer the Governor of the Kewa Pueblo, and D. Coriz now wishes
to substitute the current Governor, Thomas Moquino, Jr., as a Respondent. See Motion to
Substitute the Current Governor as the Successive Officer in the Above-Captioned Case at 1,
filed May 1, 2018 (Doc. 25)(“Motion”).
The Court referred this case to the Honorable Karen B. Molzen, United States Magistrate
Judge for the United States District Court for the District of New Mexico, on April 5, 2018, to
conduct hearings, if warranted, including evidentiary hearings, and to perform any legal analysis
required to recommend to the Court an ultimate disposition of the case. See Order of Reference
Relating to Prisoner Cases at 1, filed April 5, 2018 (Doc. 16). Magistrate Judge Molzen issued
her PFRD on June 7, 2018 in which she recommends granting the Motion in part and denying it
in part. See PFRD at 4. She recommends that: (i) the Court substitute Moquino, in his official
capacity as Governor of the Kewa Pueblo, in place of R. Coriz, in his official capacity as
Governor of the Kewa Pueblo; (ii) R. Coriz remain a respondent in his official capacity as Tribal
Court Judge; and (iii) the Court dismiss Respondent Kewa Pueblo. See PFRD at 4.
LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
RECOMMENDATIONS
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) 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.” 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
-2-
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
instructions.
28 U.S.C. § 636(b)(1).
“‘The filing of objections to a magistrate [judge’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 Prop., with Bldgs., Appurtenances, Improvements, &
Contents, 73 F.3d 1057, 1059 (10th Cir. 1996)(“One Parcel”)(quoting Thomas v. Arn, 474 U.S.
140, 147 (1985)). 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.
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
policies behind the Magistrate’s Act,[1] [the Tenth Circuit], like numerous other circuits, have
adopted a firm waiver rule that provides that the failure to make timely objections to the
magistrate [judge’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
1
28 U.S.C. § 631-636.
-3-
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 1030, 1031 (10th
Cir. 2001)(“In this circuit, theories raised for the first time in objections to the magistrate judge’s
report are deemed waived.”). In an unpublished opinion, 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 [judge].” Pevehouse v. Scibana, 229 F. App’x 795, 796 (10th Cir. 2007).
In One Parcel, the Tenth Circuit, in accord with other 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 -- noted:
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)(hereafter Senate Report); H.R.
Rep. No. 94-1609, p. 11 (1976), U.S. Code Cong. & Admin. News 1976, p. 6162
(hereafter 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)(hereafter Senate Hearings). The Committee
also heard 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. S ee id., 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
-4-
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 150–52 (emphasis in original)(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
[judge’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 Appeals where district courts
elected to address merits despite potential application of waiver rule, but the Courts of Appeals
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
-5-
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 [judge’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 [judge’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 [judge’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
-6-
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 [judge] 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
review.
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 [judge’s] proposed findings
and recommendations,” United States v. Raddatz, 447 U.S. at 676 (emphasis omitted), 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 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
-7-
magistrate judge’s recommendations. In Pablo v. Soc. Sec. Admin., No. CIV 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 generally does not, however, “review the PF&RD 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.” Pablo v.
Soc. Sec. Admin., 2013 WL 1010401, at *4. The Court, thus, does not determine independently
what it would do if the issues had come before the Court first, when there is no objection, 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
(footnote and internal brackets omitted)(quoting Workheiser v. City of Clovis, No. CIV 12-0485,
2012 WL 6846401, at *3 (D.N.M. Dec. 28, 2012) (Browning, J.). See Alexandre v. Astrue, No.
CIV 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 PF&RD.”); Trujillo v. Soc. Sec. Admin., No. CIV 12-1125,
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
-8-
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 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 [judge’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 and opinion adopting the Magistrate Judge’s proposed findings and
recommendations.
ANALYSIS
In his Objections, D. Coriz agrees that the Court should substitute Moquino, in his
official capacity as Governor of the Kewa Pueblo, for R. Coriz, in his official capacity as
Governor of the Kewa Pueblo. See Objections at 1. He does not object to Magistrate Judge
Molzen’s recommendation that R. Coriz remain a Respondent in his official capacity as Tribal
Court Judge. D. Coriz objects, however, to the dismissal of Kewa Pueblo.
I.
THE COURT DISMISSES KEWA PUELBLO.
D. Coriz objects to the dismissal of Kewa Pueblo, asserting that “[t]he Magistrate[2] cites
to Santa Clara Pueblo v. Martinez, 436 U.S. 49, 54 (1978) for the proposition that the Tribe is
immune from suit.”
Objections at 2.
D. Coriz then spends the rest of his Objections
distinguishing the case at hand from Santa Clara Pueblo v. Martinez and argues that “Santa Clara
2
A December 1, 1990 Act of Congress changed the title of federal Magistrate Judges
from “Magistrate” to “Magistrate Judge.” Thus, although some state courts, including the State
of New Mexico’s courts, have judicial officers called a “magistrate,” the proper way to address
and refer to federal Article I judges, such as Magistrate Judge Molzen, is “United States
Magistrate Judge.”
-9-
does not foreclose the possibility that a tribe cannot be held accountable in a request for habeas
relief, beyond naming the tribal officials.” Objections at 2.
Contrary to D. Coriz’ assertions, Magistrate Judge Molzen never cited Santa Clara
Pueblo v. Martinez. Rather, she correctly cited Poodry v. Tonawanda Band of Seneca Indians,
85 F.3d 874 (2d Cir. 1996) for the proposition that “[a]n application for writ of habeas corpus is
never viewed as a suit against the sovereign,” and “§ 1303 does not signal congressional
abrogation of tribal sovereign immunity, even in habeas cases.” 85 F.3d at 899-900 (emphasis
added). D. Coriz argues that the question presented in his motion is “whether the grant of Writ
of Habeas Corpus under 25 U.S.C. § 1303 provides for suit against a tribe as a sovereign.”
Objections at 2. Poodry v. Tonawanda Band of Seneca Indians explicitly answers that § 1303
does not. Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d at 899 (“Because a petition for
writ of habeas corpus is not properly a suit against the sovereign, [the tribe] is simply not a
proper respondent.”). In fact, other judges in the District of New Mexico have dismissed Kewa
Pueblo from § 1303 habeas proceedings, citing Poodry v. Tonawanda Band of Seneca Indians.
See, e.g., Aguilar v. Rodriguez, Order Dismissing Kewa Pueblo and Ordering Remaining
Defendants to Answer, No. CIV 17-1264 (D.N.M. Jan. 10, 2018); Van Pelt v. Geisen, Order
Dismissing Kewa Pueblo and Directing Respondents to Answer, No. CIV 17-0647 (D.N.M. June
22, 2017). The Court therefore agrees with Magistrate Judge Molzen that Kewa Pueblo should
be dismissed.
II.
THE COURT WILL SUBSTITUE TRIBAL OFFICERS.
Having conducted a review of the rest of Magistrate Judge Molzen’s PFRD, the Court
agrees that it should substitute Moquino, in his official capacity as Governor of the Kewa
Pueblo, as a Respondent in place of R. Coriz, in his official capacity as Governor of the Kewa
- 10 -
Pueblo, but that R. Coriz should remain a Respondent in his official capacity as Tribal Court
Judge. Tribal sovereign immunity does not bar “actions against tribal officers for writs of habeas
corpus.” Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d at 899-900. Rule 25(d) of the
Federal Rules of Civil Procedure provides that “[a]n action does not abate when a public officer
who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the
action is pending.” Fed. R. Civ. P. 25(d). Instead, the “officer’s successor is automatically
substituted as a party,” and the “Court may order substitution at any time, but the absence of
such an order does not affect the substitution.” Fed. R. Civ. P. 25(d). “In general [rule 25(d)]
will apply whenever effective relief would call for corrective behavior by the one then having
official status and power, rather than one who has lost that status and power through ceasing to
hold office.” Fed. R. Civ. P 25(d) advisory committee’s note to 1961 amendment. The proper
respondent, therefore, is “the official with authority to modify the tribal conviction or sentence.”
Garcia v. Elwell, No. CIV 17-0333, 2017 WL 3172826, at *2 (D.N.M. May 25, 2017)(citing
Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d at 899-900).
Here, it appears that both the Governor of the Kewa Pueblo and the Tribal Court Judge
are appropriate Respondents, because they both have authority to provide D. Coriz’ requested
relief. See Trial Court Record at 22, filed February 5, 2018 (Doc. 7-1)(committing D. Coriz to
the custody of the Sandoval County Detention Facility “until his release shall be ordered by the
Governor or Judge of this Pueblo”). It is undisputed that R. Coriz is no longer Governor of the
Kewa Pueblo and that Moquino now holds the office of Governor of the Kewa Pueblo. See
Response to Motion to Substitute at 2, filed May 15, 2018 (Doc. 28)(“Response”). Under rule
25(d), Moquino in his official capacity as Governor of the Kewa Pueblo, is therefore substituted
as a Respondent in place of R. Coriz, in his official capacity as Governor of the Kewa Pueblo.
- 11 -
While R. Coriz is no longer Governor of the Kewa Pueblo, however, he has “been appointed to
serve as the Tribal Court Judge in any further proceedings against Petitioner.” Response at 2.
Accordingly, his official capacity as Tribal Court Judge in this case has not ended.
IT IS ORDERED that: (i) Magistrate Judge Molzen’s Proposed Findings and
Recommended Disposition on Petitioner’s Motion to Substitute the Current Governor as the
Successive Officer in the Above-Captioned Case, filed June 7, 2018 (Doc. 34), is adopted;
(ii) Thomas Moquino, Jr., in his official capacity as Governor of the Kewa Pueblo, is substituted
as a Respondent in place of Robert B. Coriz, in his official capacity as Governor of the Kewa
Pueblo; (iii) Robert B. Coriz remains a Respondent in his official capacity as Tribal Court Judge;
and (iv) Respondent Kewa Pueblo is dismissed.
________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Barbara Louise Creel
University of New Mexico School of Law
Southwest Indian Law Clinic
Albuquerque, New Mexico
Attorneys for the Petitioner
Heather Renee Smallwood
Sandoval County
Bernalillo, New Mexico
Attorney for Respondent Victor Rodriguez
Cynthia A. Kiersnowski
Leger Law & Strategy, LLC
Santa Fe, New Mexico
Attorneys for Respondent Robert B. Coriz
- 12 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?