Crow et al v. Village of Ruidoso et al
MEMORANDUM OPINION AND ORDER by District Judge James O. Browning adopting the Magistrate Judge's Proposed Findings and Recommended Disposition 33 , granting the Defendants' Motion and Memorandum of Law to Dismiss and/or for Summary Judgment Against Plaintiffs' Complaint and for Qualified Immunity 20 , and dismissing action with prejudice. (kw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ADRIENNE CROW and RICKEY CROW,
No. CIV 16-1315 JB/SMV
VILLAGE OF RUIDOSO, VILLAGE OF
RUIDOSO POLICE DEPARTMENT, and
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 7, 2017 (Doc. 33)(“PFRD”). On the Court’s
reference, see Order, filed February 28, 2017 (Doc. 19), the Honorable Stephan M. Vidmar,
United States Magistrate Judge, recommended granting the requests in the Defendants’ Motion
and Memorandum of Law to Dismiss and/or for Summary Judgment Against Plaintiffs’
Complaint and for Qualified Immunity, filed March 10, 2017 (Doc. 20)(“Motion to Dismiss”).
He recommends that the Court enter summary judgment in the Defendants’ favor. The PFRD
notifies the parties of their ability to file Objections within fourteen days and that failure to file
objections waives appellate review. To date, no party has filed Objections, nor is there anything
in the record indicating that the PFRD was not delivered. Because the PFRD is not clearly
erroneous, arbitrary, obviously contrary to law, or an abuse of discretion, the Court will adopt the
PFRD, grant the requests in the Defendants’ Motion to Dismiss, and dismiss this action with
LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS
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 the parties’ consent, to hear a pretrial matter
dispositive of a claim or defense or a prisoner petition challenging the conditions of
confinement.”). 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, “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 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,
and Contents, Known As: 2121 East 30th Street, Tulsa, Okla., 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, [28 U.S.C. §§ 631-639], 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 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 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).1
Pevehouse v. Scibana is an unpublished Tenth Circuit opinion, but the Court can rely on
an unpublished Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case
before it. See 10th Cir. R. 32.1(A), 28 U.S.C. (“Unpublished opinions 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 . . . citation to unpublished opinions is not
favored . . . However, if an unpublished opinion . . . has persuasive value with respect to a
In One Parcel, the Tenth Circuit, in accord with 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 -- in the course of approving the United
States Court of Appeals for the Sixth Circuit’s use of this 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’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. 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
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
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 preparation of this Memorandum Opinion and Order.
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 (emphasis in original)(footnotes omitted).
The Tenth Circuit has 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 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 filed 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 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. Sparrow 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 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 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 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 the “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 will still review the Magistrate Judge’s recommendations. In Pablo v. Soc.
Sec. Admin., No. 11-0132, 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.
See 2013 WL 1010401, at *3. 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 wavier 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
Although no party objected to the PFRD before the deadline to make objections, the
Court has reviewed the PFRD under its standard of review. Judge Vidmar’s findings and
recommendation in the PFRD are not clearly erroneous, arbitrary, obviously contrary to law, or
an abuse of discretion. The Court will, therefore, adopt the PFRD as its own.
IT IS ORDERED that: (i) the Magistrate Judge’s Proposed Findings and Recommended
Disposition, filed August 7, 2017 (Doc. 33) is adopted; (ii) the requests in the Defendants’
Motion and Memorandum of Law to Dismiss and/or for Summary Judgment Against Plaintiffs’
Complaint and for Qualified Immunity, filed March 10, 2017 (Doc. 20), is granted; and (iii) this
action is dismissed with prejudice.
UNITED STATES DISTRICT JUDGE
Ruidoso, New Mexico
Plaintiff pro se
Ruidoso, New Mexico
Plaintiff pro se
--and-Richard E. Olson
Hinkle, Hensley, Shanor & Marin, LLP
Roswell, New Mexico
Attorneys for the Defendants
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