Aicher v. Ali et al
MEMORANDUM OPINION AND ORDER by District Judge James O. Browning adopting 59 the Magistrate Judge's Proposed Findings and Recommended Disposition (meq)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CIV 15-0552 JB/SCY
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 Proposed Findings
and Recommended Disposition, filed August 28, 2017 (Doc. 59)(“PFRD”), advising that the
Court: (i) deny as moot the Plaintiff’s Motion to Oppose N.M. Dept. of Correction’s From [sic]
Entering into Case No’s. 2:15-cv-00552 JB/SCY and 1:16-cv-00914 MCA/SCY, filed
September 1, 2016 (Doc. 38)(“Motion to Oppose”); (ii) deny the Defendant Access Corrections’
Motion to Strike Inappropriate and Untrue Statements of Plaintiff Concerning Settlement
Discussions and Other Communications of Counsel, filed September 9, 2016 (Doc. 40)(“Motion
to Strike”); and (iii) deny Defendant Access Corrections’ Motion to Dismiss Motion for
Summary Judgment, filed November 10, 2016 (Doc. 48)(“Motion to Dismiss”). The parties
have not filed any Objections to the PFRD, thereby waiving their right to the Court’s proposed
award review. See United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir.
1996)(“One Parcel”). Furthermore, upon review of the record, the Court concludes that the
Honorable Steven C. Yarbrough, United States Magistrate Judge for the United States District
Court for the District of New Mexico’s findings and recommended disposition in the PFRD are
not clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion.
Accordingly, the Court will: (i) adopt the PFRD; (ii) deny as moot the Plaintiff’s Motion to
Oppose; (iii) deny the Defendant’s Motion to Strike; and (iv) deny the Defendant’s Motion to
LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
District courts may refer dispositive motions to a Magistrate Judge for a recommended
See Fed. R. Civ. P. 72(b)(1)(“A magistrate judge must promptly conduct the
required proceedings when assigned, without parties’ consent, to hear a pretrial matter
dispositive of a claim or defense . . . .”). Rule 72(b)(2) governs objections: “Within 10 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, “the 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 the 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,
and Contents, 73 F.3d 1057, 1059 (10th Cir. 1996)(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 (citing Niehaus v. Kansas 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 held in One Parcel “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, [the Tenth Circuit], like numerous other
circuits, ha[s] 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 1030,
1030-31 (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
has 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.
28 U.S.C. §§ 631-39.
Pevehouse v. Scibana is an unpublished opinion from the Tenth Circuit, 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 opinions are not precedential, but may be cited
for their persuasive value.”). The Tenth Circuit has stated:
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 -- in the course of approving the United States Court of
Appeals for the Sixth Circuit’s use of the waiver rule -- has 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 judge’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 the 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. See 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
magistrate’s recommendation, and the litigation would terminate with the judge’s
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)(citations omitted). 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.
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 has 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 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 recommendations, 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 a 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 the
requirements of 28 U.S.C. § 636(b)(1) 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 583-84). “[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 previously 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 any brief district court order that “merely repeat[s] the
language of § 636(b)(1) to indicate its compliance” is 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 a district court may place whatever reliance it chooses on a Magistrate
Judge’s proposed findings and recommendations, a district court “may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate,” 28 U.S.C. §
636(b)(1), as “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 (emphasis omitted). 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 in the past and in the interests of justice,
reviewed the Magistrate Judge’s recommendations. In Pablo v. Soc. Sec. Admin., 2013 WL
1010401 (D.N.M. 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. The Court generally does not,
however, “review the PF&RD de novo, because the parties had 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, but rather adopts the proposed findings and recommended
disposition where “[t]he 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 *4. See Alexandre v. Astrue, 2013 WL 1010439, at *4
(D.N.M. 2013)(Browning, J.)(“The Court rather reviewed the findings and recommendations of
the Honorable Stephan M. Vidmar, United States Magistrate Judge, 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 PFRD.”); Trujillo v. Soc. Sec. Admin.,
2013 WL 1009050, at *5 (D.N.M. 2013)(Browning, J.)(adopting the proposed findings and
conclusions, noting: “The Court did not review the ARD de novo, because Trujillo has not
objected to it, but rather reviewed the . . . findings and recommendations 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 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 where it issues an order adopting
the Magistrate Judge’s proposed findings and recommendations.
Although no party objected to the PFRD before the deadline to object, the Court has
reviewed the PFRD. Upon review, the Court determines that Magistrate Judge Yarbrough’s
findings and recommended disposition in the PFRD are not clearly erroneous, arbitrary,
obviously contrary to law, or an abuse of discretion. Accordingly, the Court will: (i) adopt the
PFRD as its own; (ii) deny as moot the Plaintiff’s Motion to Oppose; (iii) deny the Defendant’s
Motion to Strike; and (iv) deny the Defendant’s Motion to Dismiss.
IT IS ORDERED that the Magistrate Judge’s Proposed Findings and Recommended
Disposition, filed August 28, 2017 (Doc. 59), is adopted.
UNITED STATES DISTRICT JUDGE
Southern New Mexico Correctional Facility
Las Cruces, New Mexico
Plaintiff pro se
Benjamin Silva, Jr.
Robert Michael Hughes, Jr.
Silva & Associates, P.C.
Albuquerque, New Mexico
Attorneys for Defendant
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