Baer v. Salt Lake City Corporation et al

Filing 236

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; denying 140 Motion for Partial Summary Judgment; denying 187 Motion for Default Judgment; denying 188 Motion for Default Judgment; denying 199 Motion to Set Aside ; denying 199 Motion to Change Venue; adopting Report and Recommendations re 201 Report and Recommendations.; granting 209 Motion for Summary Judgment ; adopting Report and Recommendations re 234 Report and Recommendations. See Order for details. Signed by Judge Clark Waddoups on 10/3/16. (jmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

MARLIN BAER,
Plaintiff,

ORDER ADOPTING REPORTS AND
RECOMMENDATIONS

v.
Case No. 2:13-cv-00336-CW-PMW
SALT LAKE CITY CORPORATION, et al.,
Judge Clark Waddoups
Defendants.

This case was assigned to United States District Court Judge Clark Waddoups, who
subsequently referred it to United States Magistrate Judge Paul M. Warner pursuant to 28 U.S.C.
§ 636(b)(1)(B). 1 (See Dkt. No. 2.)
Consistent with Judge Warner’s treatment of the case, because Mr. Bear is not an
attorney and represents himself, the court liberally construes his filings and holds them to a “less
stringent standard than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89,

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Contrary to Plaintiff Marlin Bear’s belief that Magistrate Judge Warner is “not authorized” to
hear summary judgment motions and make recommendations in this case under 28 U.S.C. §
636(b)(1)(A), (see Dkt. No. 233, p. 2; Dkt. No. 235, p. 1–2), the court notes that § 636(b)(1)(A)
does not apply here because the court referred the case to Judge Warner under 28 U.S.C. §
636(b)(1)(B). Section 636(b)(1)(B) states, in relevant part:
(B) a judge may also designate a magistrate judge to conduct hearings, including
evidentiary hearings, and to submit to a judge of the court proposed findings of
fact and recommendations for the disposition, by a judge of the court, of any
motion excepted in subparagraph (A) . . . .
The court reminds Mr. Bear that “the consent of the parties was not required for the district judge
to refer the case to a magistrate judge” under 28 U.S.C. § 636(b)(1)(B), under which provision
Judge Warner “only made findings of fact and recommendations” and “the ultimate decisionmaking authority was retained by the district court.” Lineberry v. United States, 436 Fed. App’x
293, 295 (5th Cir. 2010) (internal citations and quotations omitted).

94 (2007) (quotations and citation omitted). But the court does not “take on the responsibility of
serving as the litigant’s attorney in constructing arguments and searching the record.” Garrett v.
Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Pro se parties must follow
the same rules of procedure as other litigants. Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir.
2007). Moreover, the litigant has the responsibility to present to the court evidence, which if
believed by a jury, would support his claim. The court cannot assume from a litigant’s
representations that such evidence exists, even drawing all inferences most favorably to the party
seeking to avoid summary judgment.
On June 20, 2016, Judge Warner issued a Report and Recommendation recommending
the court deny Mr. Baer’s motions for default judgment against Salt Lake County. (See Dkt. No.
201.) On September 7, 2016, Judge Warner issued a separate Report and Recommendation
recommending the court deny Mr. Baer’s Motion for Partial Summary Judgment (Dkt. No. 140)
and grant the County Defendants’ (as defined in Judge Warner’s Report and Recommendation)
Motion for Summary Judgment (Dkt No. 209). (See Dkt. No. 55.)
Mr. Baer did not timely object to either Report and Recommendation. Mr. Baer has,
however, filed a number of objections to Judge Warner’s August 9, 2016 hearing on the
summary judgment motions and to Judge Warner’s authority to make recommendations and
rulings in the case generally. (See Dkt. Nos. 226, 230, 233, 235.) The court has reviewed these
objections and carefully considered Judge Warner’s Reports and Recommendations, as well as
the parties’ underlying filings.
With respect to summary judgment, Mr. Baer fails to object to the substance of Judge
Warner’s findings and conclusions recommending dismissal of Mr. Baer’s claims against the
County Defendants. The court sees no bias in Judge Warner’s reasoned conclusion that Mr. Baer
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has not provided evidence on which a reasonable juror could conclude that the County
Defendants committed any constitutional violation in this case or maintained constitutionally
defective policies, practices, or customs. (See Dkt. 234, p. 18.) The court understands that, from
his perspective, Mr. Baer believes he was treated unfairly. Indeed, Mr. Baer’s encounter with law
enforcement may have been harsh and the civil violations with which he was charged may
have––and perhaps should have––been resolved in a less intrusive manner. It is likely, however,
that Mr. Baer must also bear some responsibility for the way these civil matters were resolved
and law enforcement’s response to him. Nevertheless, the only evidence presented shows Mr.
Baer is without grounds to challenge that the County Defendants acted appropriately within the
mandates of the Constitution and the discretion granted to them to carry out their duties. Upon de
novo review of Judge Warner’s findings, the court APPROVES AND ADOPTS Judge Warner’s
Report and Recommendation (Dkt. No. 234) in its entirety.
Judge Warner also recommended Mr. Baer’s motions for default judgment be denied
because Mr. Baer cannot demonstrate that the County Defendants have “failed to plead or
otherwise defend” in this matter. (Dkt. No. 201, p. 3.) Mr. Baer likewise did not object to this
Report and Recommendation. As Judge Warner noted, County Defendants’ have actively
engaged in the case by answering and defending against Mr. Baer’s motions. Moreover, this
court’s conduct cannot be a basis for default judgment against a defendant. Thus, the court
APPROVES AND ADOPTS Judge Warner’s Report and Recommendation on Mr. Baer’s
motions for default judgment (Dkt. No. 201) in its entirety.
Finally, the Court has reviewed Mr. Baer’s Motion to Set Aside and Vacate Judge
Warner’s rulings at a hearing on May 23, 2016. (Dkt. No. 199.) Mr. Baer presents no specific
grounds on which the court might overrule Judge Warner’s May 23, 2016 rulings. Judge Warner
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resolved many pending, often duplicative motions related to discovery disputes and gave the
parties further guidance in completing discovery in the case, as well as a timeline for filing and
responding to dispositive motions. (See Dkt. No. 182.) The rulings assisted in moving the case
toward a just and speedy resolution. (See id., p. 2.) The Court finds no basis to reverse these
rulings.
Accordingly, following Judge Warner’s Reports and Recommendations (Dkt. Nos. 201,
234), and for the reasons stated therein, the court hereby ORDERS as follows:
•

Mr. Baer’s Motion for Partial Summary Judgment (Dkt. No. 140) is DENIED.

•

The County Defendants’ Motion for Summary Judgment (Dkt. No. 209) is
GRANTED and Mr. Baer’s claims against the County Defendants are therefore
dismissed with prejudice.

•

Mr. Baer’s motions for default judgment against Salt Lake County (Dkt. Nos. 187
& 188) are DENIED.

The Court also DENIES Mr. Bear’s Motion to Set Aside and Vacate Judge Warner’s
rulings on May 23, 2016 (Dkt. No. 199).
DATED this 3rd day of October, 2016.
BY THE COURT:

____________________________________
Clark Waddoups
United States District Judge

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