United States District Court, D. New Mexico
Matthew Mora Guadalupe County Correctional Facility Santa
Rosa, New Mexico Plaintiff Pro Se
M. Quinones Quinones Law Firm Santa Fe, New Mexico Attorney
for the Defendants
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE
JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on the Magistrate
Judge's Report and Recommendations, filed September 29,
2017 (Doc. 35)(“PFRD”), recommending that the
Court grant the Defendants' Motion for Summary Judgment
on the Basis of Lack of Personal Participation, Qualified
Immunity and Other Grounds, filed July 10, 2017 (Doc.
33)(“MSJ”). Neither party has filed Objections to
the PFRD. The Court concludes that the PFRD is not clearly
erroneous, arbitrary, obviously contrary to law, or an abuse
of discretion. Upon review of the record and otherwise being
fully advised, the Court adopts the Honorable Gregory B.
Wormuth's, United States Magistrate Judge, PFRD, and the
MSJ is granted.
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 . . . .”). 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).
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 &
Contents, 73 F.3d 1057, 1059 (10th Cir. 1996)(quoting
Thomas v. Arn, 474 U.S. 140, 147
(1985))(“One Parcel”). 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. 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 has held “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, [has] 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 1421, 1426 (10th Cir.
1996)(“In this circuit, theories raised for the first
time in objections to the magistrate judge's report are
deemed waived.”). 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 the
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 of America __ 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)(“Senate Report”); H.R. Rep. No. 94-1609,
p. 11 (1976), U.S. Code Cong. & Admin. News 1976, p. 6162
(“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'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 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)(“Senate Hearings”). The
Committee also heard the Honorable 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 Senate Hearings 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 151-52 (footnotes
Tenth Circuit 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'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 on appeal because it
would advance the interests underlying the waiver rule.
See 73 F.3d at 1060-61 (citing cases from other
Courts of Appeal where district courts elected to address
merits despite potential application of waiver rule, but
Courts of Appeal opted to enforce waiver rule).
party files timely and specific objections to the Magistrate
Judge's proposed findings and recommendation on
“dispositive motions, the statute calls for a de novo
determination, not a de novo hearing.” United
States v. Raddatz, 447 U.S. 667, 674 (1980). “[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's proposed
findings and recommendations.” United States v.
Raddatz, 447 U.S. at 676 (quoting 28 U.S.C. §
636(b))(citing Mathews v. Weber, 423 U.S. 261, 275
(1976)). The Tenth Circuit requires a “district court
to consider relevant evidence of record and not merely review
the magistrate judge's recommendation” when
conducting a de novo review of a party's timely, specific
objections to the Magistrate Judge's report. In re
Griego, 64 F.3d 580, 583-84 (10th Cir. 1995).
“When objections are ...