United States District Court, D. New Mexico
Cruces, New Mexico Plaintiff pro se
Benjamin Silva, Jr. Robert Michael Hughes, Jr. Silva &
Associates, P.C. Albuquerque, New Mexico Attorneys for
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
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 Dismiss.
REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
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 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.”
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).
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)).
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.
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 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
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