United States District Court, D. New Mexico
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
CHRISTINA ARMIJO Chief United States District Judge.
matter comes before the Court on Plaintiff's Objections
(doc. 36) to the Magistrate Judge's Proposed
Findings and Recommended Disposition (doc. 33). At
issue in this Order are Defendants' Motion for Summary
Judgment (doc. 23), Plaintiff's Motion to
Reinstate Default Judgment (doc. 14), and
Plaintiff's Motion to Remand (doc. 15). Having
reviewed the relevant filings and the applicable law, the
Court will overrule the objections and adopt the Proposed
Findings and Recommended Disposition. Accordingly, the Court
will grant Defendants' Motion for Summary Judgment and
deny Plaintiff's Motion to Reinstate Default Judgment and
Motion to Remand.
was arrested on January 6, 2015 for trafficking and
distribution of a controlled substance and being a felon in
possession of a firearm following a search of his home by the
Bernalillo County Sheriff's Office, conducted pursuant to
a search warrant. Doc. 22 at 1-2; doc. 22-1
at 9. The search of Plaintiff's home revealed
methamphetamine, heroin, digital scales, plastic bags
consistent with narcotics trafficking, a loaded ammunition
clip, a ballistic vest, and a .380 handgun. Doc. 22
at 2; doc. 22-5. Plaintiff sued Defendants in the
Second Judicial District Court of New Mexico on October 28,
2015. Doc. 1-1. Plaintiff's Complaint states
that it is a tort suit brought pursuant to the New Mexico
Tort Claims Act (NMTCA). Id. at 1. Plaintiff also
alleges constitutional violations arising under the Fourth,
Fifth, and Fourteenth Amendments as a result of the search of
his home. Id. at 2. These allegations are properly
construed as claims brought pursuant to 42 U.S.C. §
was initially granted an entry of default by the state court
below on June 30, 2016 due to Defendants' failure to
respond to Plaintiff's Complaint or appear at a hearing
in the matter. See doc. 7-1 at 31-33. However, upon
motion by Defendants, the state court set aside its entry of
default pursuant to Rule 1-055(C) of the New Mexico Rules of
Civil Procedure on September 2, 2016, prior to the entry of a
final default judgment. See Id. at 39-44; 58-59.
Defendants removed this action on September 21, 2016.
Doc. 1. Following removal, Plaintiff filed a Motion
to Reconsider and a Motion to Remand, asking the Court to
reinstate the default judgment set aside by the state court
below and to remand this matter to state court. Docs. 14,
15. Defendants then filed a Martinez Report in
lieu of formal discovery concurrently with their Motion for
Summary Judgment on December 9, 2016. Docs. 22, 23.
Plaintiff filed his own Motion for Summary Judgment on
February 13, 2017 (doc. 29), but his motion has been
construed as a response to Defendants' summary judgment
motion, and therefore, to the extent it is a separate motion,
it will be denied. See doc. 32.
April 4, 2017, the Magistrate Judge filed his Proposed
Findings and Recommended Disposition (PFRD). Doc.
33. The Magistrate Judge first examined the
jurisdictional issue as to whether the Court has authority to
reconsider and overturn orders entered by the state court
prior to removal. Id. at 3-5. After determining that
it does, the Magistrate Judge recommended that the Court deny
Plaintiff's Motion for Reconsideration (doc. 14)
and Motion to Remand (doc. 15) on the basis that the
entry of default was properly set aside for good cause shown.
Doc. 33 at 5-7. The Magistrate Judge also noted that
Plaintiff's Motion to Remand was untimely and recommended
denying it on that alternative basis. Id. at 6.
Defendants' Motion for Summary Judgment (doc.
23), the Magistrate Judge recommended that the Court
grant that motion on the following grounds: (1) Defendant
Garcia is entitled to summary judgment on the basis of
qualified immunity; (2) Defendant Bernalillo County
Sheriff's Department is entitled to summary judgment
because no reasonable jury could find that a constitutional
violation occurred under the evidence presented; and (3)
Plaintiff's NMTCA claims should be dismissed due to his
failure to comply with the notice requirement of the Act.
Doc. 33 at 15-36.
April 28, 2017, Plaintiff filed Objections to the PFRD.
Doc. 36. Plaintiff argues that (1) the evidence does
create a triable issue as to whether his constitutional
rights were violated by Defendants and (2) Plaintiff
correctly followed procedure in the state court below, and
therefore Defendants received the proper notice of his NMTCA
claims. See Id. at 2-6.
Legal Standard Applicable to Objections
motions at issue were referred to the Magistrate Judge
pursuant to Title 28 U.S.C. § 636(b)(1)(B) and (b)(3).
See doc. 12. When resolving objections to a
magistrate judge's PFRD, “[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); see also 28 U.S.C. §
636(b)(1)(C). The Tenth Circuit has held “that a
party's objections to [a] 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.” United States v. 2121 E.
30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). When
neither party objects to a finding or recommendation, no
further review by the district court is required. See
Thomas v. Arn, 474 U.S. 140, 151-52 (1985).
“Issues 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).
preliminary matter, Plaintiff offers no objections regarding
the Magistrate Judge's recommendation to deny
Plaintiff's Motion to Reinstate Default Judgment
(doc. 14) and Motion to Remand (doc. 15).
Upon review of the record, the Court concurs with the
Magistrate Judge's findings and recommendations as to
those motions, and will therefore adopt them and deny those
motions without further analysis. See Thomas, 474
U.S. at 151-52. Plaintiff also does not object to the
Magistrate Judge's findings and recommendation regarding
Defendant Garcia's entitlement to summary judgment on the
basis of qualified immunity. Doc. 33 at 15-18.
Having reviewed the applicable law and pertinent facts, the
Court finds that Plaintiff has not met his burden of showing
that Defendant Garcia's conduct violated Plaintiff's
constitutional rights under clearly established law.
Therefore, the Court agrees that Defendant Garcia is entitled
to summary judgment on the basis of qualified immunity and
will grant it to him. See Pueblo Neighborhood Health
Ctrs., Inc., v. Losavio, 847 F.2d 642, 645-46 (10th Cir.
objects to the PFRD claiming that the Magistrate Judge
improperly concluded that (1) the evidence does not create a
triable issue as to whether Plaintiff's constitutional
rights were violated, and (2) Plaintiff failed to comply with
the notice requirement of the NMTCA. See doc. 36 at
2-6. Specifically, Plaintiff argues that the affidavit
supporting the search warrant contained known falsehoods and
information from a non-credible confidential source, and that
the judge who issued the warrant was not a neutral
magistrate. Id. at 3-5. Plaintiff contends that this
evidence establishes a triable question as to whether
Defendants violated his constitutional rights to due process
under the Fourteenth Amendment and to be free of unreasonable
searches and seizures under the Fourth Amendment.
Id. Additionally, Plaintiff asserts that the records
from the state court below suffice to show that he complied
with the NMTCA's notice requirement. Id. at 6.
The Court will address each argument in turn.
Sufficiency of the Affidavit Underlying ...