Jackson v. State of New Mexico

Filing 16

MEMORANDUM OPINION AND ORDER ADOPTING 12 REPORT AND RECOMMENDATIONS by District Judge James O. Browning OVERRULING 13 Objections to Report and Recommendations, OVERRULING 14 Response, DENYING 1 Notice of Removal and DENYING 4 MOTION for Order. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID JACKSON,
Plaintiff,
vs.

No. CIV 23-0918 JB/GBW

CHILDREN YOUTH AND FAMILY
DEPARTMENT,
Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on: (i) the Proposed Findings and Recommended
Disposition, filed March 13, 2024 (Doc. 12)(“PFRD”); (ii) the Plaintiff’s Objection to Motions to
be Dismissed [sic], filed March 27, 2024 (Doc. 13)(“First Objections”); and (iii) the Plaintiff’s
Responding to Judge Cross Default Judgement [sic], filed April 8, 2024 (Doc. 14)(“Second
Objections”). The PFRD notifies the parties of their ability to file objections within fourteen days
and that failure to file objections waives appellate review. See PFRD at 6. On March 27, 2024,
Plaintiff David Jackson filed objections to the PFRD. See First Objections at 1. On April 8, 2024,
Plaintiff made an additional filing which the Court will consider as supplemental objections. See
Second Objections at 1. The primary issue in the Objections is whether the judicial system
properly acknowledges Jackson’s claims of discrimination. See First Objections at 1-6; Second
Objections at 1-3. The PFRD does not recommend dismissal of Plaintiff’s claims. See PFRD at
6. The PFRD recommends that the Court deny Jackson’s Motion for Default Compliant [sic]
Aginst [sic] Children Youth and Family (CYFD) for Discrimination Abuse, Failure to Comply
Writ of Certiorari Issued by Court, 1st Amendment, and Civil Rights Act (dated September 26,

2023)(“Motion for Default”), filed with Summons at 4-5, filed October 18, 2023 (Doc. 1-3)(“State
Court Filings”), 1 and Jackson’s Motion: [sic] to Reinstate the Case to State Court, filed October
30, 2023 (Doc. 4)(“Motion for Remand”). See PFRD at 1-6.
Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the Court has conducted a
de novo review of the record and has “given fresh consideration to” all parts of the PFRD that the
Honorable Gregory B. Wormuth, United States Magistrate Judge for the United States District
Court for the District of New Mexico, prepared to which Plaintiff has properly objected. United
States v. Raddatz, 447 U.S. 667, 675 (1980) (“Raddatz”). With respect to the portions of the PFRD
to which Plaintiff has not properly objected, the Court will adopt them 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.” Workheiser v. City of Clovis, No. CIV 12-0485, 2012
WL 6846401, at *3 (D.N.M. Dec. 28, 2012)(Brownging, J.). After conducting a review under
these standards as appropriate, the Court will adopt Magistrate Judge Wormuth’s conclusions and
deny Plaintiff’s Motion for Default and Motion to Remand.
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 or a prisoner petition challenging the conditions of

1

The Motion for Default appears on pages 4 through 5 of a larger filing that compiles
multiple documents filed in Jackson’s underlying State court case; the first page of the compilation
is the State court summons that Jackson had served on CYFD. See State Court Filings at 1-8.

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confinement.”). 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
instructions.
28 U.S.C. § 636(b)(1)(C).
“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 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, 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 has held “that a party’s objections to the magistrate judge’s report and

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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 (quoting Moore v. United States, 950 F.2d 656, 659
(10th Cir. 1991)). “[O]nly an objection that is sufficiently specific to focus the district court’s
attention on the factual and legal issues that are truly in dispute will advance the policies behind
the Magistrate’s Act.” One Parcel, 73 F.3d at 1060. 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). 2

2

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.

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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
[judge’]s order does not apprise the pro se litigant of the consequences of a failure to object to
findings and recommendations.”)). In One Parcel, the Tenth Circuit noted that the district judge
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 such actions
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 Courts of Appeals opted to enforce waiver rule).
Where a party files timely and specific objections to the Magistrate Judge’s PFRD “on . . .
dispositive motions, the statute calls for a de novo determination, not a de novo hearing.” Raddatz,
447 U.S. at 674. The Tenth Circuit has stated that a de novo determination, pursuant to 28 U.S.C.
§ 636(b), “requires the district court to consider relevant evidence of record and not merely review
the magistrate judge’s recommendation.” In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). The
Supreme Court of the United States has noted that, although a district court must make a de novo
determination of the objections to recommendations under 28 U.S.C. § 636(b)(1), the district court
is not precluded from relying on the Magistrate Judge’s proposed findings and recommendations.

United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005)(citing In re Citation of Unpublished
Opinions/Ords. & Judgments, 151 F.R.D. 470 (10th Cir. 1993)). 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.

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See Raddatz, 447 U.S. at 676 (“[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.” (quoting 28 U.S.C. § 636(b)(1)); Bratcher v. Bray-Doyle Indep. Sch. Dist. No.
42 of Stephens Cnty., 8 F.3d 722, 724-25 (10th Cir. 1993)(holding that the district court’s adoption
of the Magistrate Judge’s “particular reasonable-hour estimates” is consistent with a de novo
determination, because “the district court ‘may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate,’ . . . [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.’” (quoting 28 U.S.C. § 636(b)(1))(emphasis
in Bratcher).
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 Workheiser v. City of Clovis, 2012 WL 6846401,
where the plaintiff failed to respond to the Magistrate Judge’s proposed findings and recommended
disposition, although the Court determined that the plaintiff “has waived his opportunity for the
Court to conduct review of the factual and legal findings in the [proposed findings and
recommended disposition],” the Court nevertheless conducted such a review. Workheiser v. City
of Clovis, 2012 WL 6846401, at *3. The Court generally does not, however, review the Magistrate
Judge’s proposed findings and recommended disposition de novo, and determine independently
necessarily 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

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Judge’s recommendation . . . is clearly erroneous, arbitrary, [obviously] 3 contrary to law, or an
abuse of discretion.” Workheiser v. City of Clovis, 2012 WL 6846401, at *3.
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
intent of the waiver rule 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

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The Court previously used as the standard for review when a party does not object to the
Magistrate Judge’s proposed findings and recommended disposition whether the recommendation
was “clearly erroneous, arbitrary, contrary to law, or an abuse of discretion,” thus omitting
“obviously” in front of contrary to law. Solomon v. Holder, No. CIV 12-1039 JB/LAM, 2013 WL
499300, at *4 (D.N.M. Jan. 31, 2013)(Browning, J.)(adopting the recommendation to which there
was no objection, stating: “The Court determines that the PFRD is not clearly erroneous, arbitrary,
contrary to law, or an abuse of discretion, and accordingly adopts the recommendations therein.”);
O’Neill v. Jaramillo, No. CIV 11-0858 JB/GBW, 2013 WL 499521 (D.N.M. Jan. 31,
2013)(Browning, J.)(“Having reviewed the PRFD under that standard, the Court cannot say that
the Magistrate Judge’s recommendation is clearly erroneous, arbitrary, contrary to law, or an abuse
of discretion. The Court thus adopts [Magistrate] Judge Wormuth’s PFRD.” (citing Workheiser v.
City of Clovis, 2012 WL 6846401, at *3)); Galloway v. JP Morgan Chase & Co., No. CIV 120625 JB/RHS, 2013 WL 503744 (D.N.M. Jan. 31, 2013)(Browning, J.)(adopting the Magistrate
Judge’s recommendations upon determining that they were not “clearly contrary to law, or an abuse
of discretion.”). The Court does not believe that “contrary to law” accurately reflects the
deferential standard of review that the Court intends to use when there is no objection. Finding
that a Magistrate Judge’s recommendation is contrary to law would require the Court to analyze
the Magistrate Judge’s application of law to the facts or the Magistrate Judge’s delineation of the
facts -- in other words performing a de novo review, which is required when a party objects to the
recommendations only. The Court believes adding “obviously” better reflects that the Court is not
performing a de novo review of the Magistrate Judges’ recommendations. Going forward,
therefore, the Court will review, as it has done for some time now, Magistrate Judges’
recommendations to which there are no objections for whether the recommendations are clearly
erroneous, arbitrary, obviously contrary to law, or an abuse of discretion.

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Court is reluctant to have no review at all if its name is going to go at the bottom of the order
adopting the Magistrate Judge’s proposed findings and recommendations.
ANALYSIS
The Court will adopt the PFRD’s recommended disposition of the issues. The Court
concludes that Jackson’s First Objections and Second Objections are meritless. Accordingly, the
Court will deny the Motion for Default and the Motion to Remand.
I.

THE COURT ADOPTS THE PFRD’S RECOMMENDATION ON THE MOTION
FOR DEFAULT.
In the PFRD, Magistrate Judge Wormuth concludes that the Court should deny Jackson’s

Motion for Default, because Jackson has not properly effectuated service on Defendant Children
Youth and Family Department (“CYFD”). See PFRD at 5. Magistrate Judge Wormuth reasons
that “because Defendant has no duty to plead until properly served, entry of default prior to service
is improper.” Id. In his First Objections and Second Objections, Jackson argues that CYFD is not
responding to his lawsuit. See First Objections at 1; Second Objections at 1.
Entry of default prior to service is improper because Defendant has no duty to plead until
properly served. See Fed. R. Civ. P. 55(a) (providing that the clerk shall enter default “[w]hen a
party against whom a judgment for affirmative relief is sought has failed to plead or otherwise
defend”). When bringing an action against a department of the state of New Mexico, “service of
process shall be made on the head of the . . . department . . . and on the attorney general.” N.M.
Stat. Ann. § 38-1-17(C). Jackson had 90 days to properly effectuate service on CYFD following
removal. See Fed. R. Civ. P. 4(m); see also 28 U.S.C. § 1448. The record indicates that Jackson
has effectuated service on CYFD but not on the attorney general. See generally Summons and
Return, filed in the Ninth Judicial District, Curry County, New Mexico, on June 16, 2023 (Doc. 1-

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3 at 1-2) and Electronic Communication from the New Mexico Office of the Attorney General,
dated October 17, 2023 (Doc. 1-4). Because Jackson has not effectuated service on the attorney
general, the Court agrees with Magistrate Judge Wormuth and concludes that Jackson’s Motion
for Default must be denied because CYFD has not been properly served.
II.

THE COURT ADOPTS THE PFRD’S RECOMMENDATION ON THE MOTION
TO REMAND.
In the PFRD, Magistrate Judge Wormuth concludes that the Court should deny Jackson’s

Motion to Remand, because (i) Jackson’s Complaint, filed in the Ninth Judicial District, Curry
County, New Mexico, on June 14, 2023 (Doc. 1-2 at 1-6)(“Complaint”) mentions federal claims
and (ii) Jackson fails to rebut Defendant’s claim that the Complaint contains federal claims. See
PFRD at 5-6. Magistrate Judge Wormuth reasons that “it is reasonable to interpret Plaintiff’s
mention of the ‘1st Amendment’ and ‘Civil Rights Act’ in his Complaint as an attempt to state
federal claims.” Id. at 6. In his objections, Jackson states, “A mistake was made identifying ist
[sic] Amendment as a violation for discrimination. The 14th Amenment [sic] would have been
appropriate. The Amendment had a protection clause, intended to stop State Government from
discriminating against African Americans.

Civil Rights Act, is a labor law, that outlaws

discrimination base on color, religion, sex, and deployment discrimination.” Objections at 1.
A defendant may remove an action to federal court if a United States district court would
have original jurisdiction over the matter. See 28 U.S.C. § 1441(a); see also 28 U.S.C. § 1331
(“The district courts shall have original jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United States.”). Federal question jurisdiction exists when “a
federal question is presented on the face of plaintiff’s properly pleaded complaint.” Caterpillar,
Inc. v. Williams, 482 U.S. 386, 392 (1987). Jackson, in his Motion to Remand and his Objections,

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fails to argue that his Complaint does not contain federal claims. See generally Motion to Remand
and Objections. Jackson’s Complaint mentions federal claims, and it is reasonable to interpret
Jackson’s mention of the Fourteenth Amendment and Civil Rights Act in his Objections as another
indication that his Complaint may state federal claims. See Objections at 1. Accordingly, the
Court agrees with Magistrate Judge Wormuth and concludes that Jackson’s Motion for Remand
must be denied.
IT IS ORDERED that: (i) the Proposed Findings and Recommended Disposition, filed
March 13, 2024 (Doc. 12), are adopted; (ii) the Plaintiff’s Objection to Motions to be Dismissed
[sic], filed March 27, 2024 (Doc. 13), is overruled; and (iii) the Plaintiff’s Responding to Judge
Cross Default Judgement [sic], filed April 8, 2024 (Doc. 14), is overruled; (iv) the Plaintiff’s
Motion for Default Compliant [sic] Aginst [sic] Children Youth and Family (CYFD) for
Discrimination Abuse, Failure to Comply Writ of Certiorari Issued by Court, 1st Amendment,
and Civil Rights Act (dated September 26, 2023), filed with Summons at 4-5, filed October 18,
2023 (Doc. 1-4), is denied; and (iv) the Plaintiff’s Motion: [sic] to Reinstate the Case to State
Court, filed October 30, 2023 (Doc. 4), is denied.

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Parties and Counsel:
David Jackson
Clovis, New Mexico
Plaintiff pro se
Sean Olivas
Ryan Walters
Jennings Haug Keleher McLeod LLP
Albuquerque, New Mexico
Attorneys for the Defendant

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