United States District Court, D. New Mexico
Adrienne Crow Ruidoso, New Mexico Plaintiff pro se
Crow Ruidoso, New Mexico Plaintiff pro se
Richard E. Olson Stephen Shanor Hinkle, Hensley, Shanor &
Marin, LLP Roswell, New Mexico Attorneys for the Defendants
MEMORANDUM OPINION AND 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 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”).
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 prejudice.
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 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.”
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 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)).
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).
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.
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 ...