Aicher v. Ali

          Eric Aicher Northeast New Mexico Detention Facility Clayton, New Mexico Plaintiff pro se

          Benjamin Silva, Jr. Robert Michael Hughes, Jr. Silva & Associates, P.C. Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER comes before the Court on the Magistrate Judge's Proposed Findings and Recommended Disposition, filed March 9, 2018 (Doc. 92)(“PFRD”), advising that the Court: (i) deny Plaintiff Eric Aicher's Motion to Amend Complaint, filed November 8, 2017

         (Doc. 77); (ii) deny Aicher's Motion for Leave to File Amended Complaint, file November 9, 2017 (Doc. 78); (iii) deny Aicher's Motion to Quash Defendant's Motion for Summary Judgment Under Fed.R.Civ.P. 5(b)(2)(D) and (F), filed November 9, 2017 (Doc. 75)(“Motion to Quash”); (iv) grant Defendant Access Corrections' Motion to Strike Plaintiff's Unauthorized Surreply to Access Corrections' Reply in Support of its Motion for Summary Judgment, filed December 15, 2017 (Doc. 88)(“Motion to Strike”); (v) deny Aicher's Motion for Summary Judgment, filed August 23, 2017 (Doc. 58)(“Aicher MSJ”); and (vi) grant Defendant Access Corrections' Motion for Summary Judgment, filed October 30, 2017 (Doc. 68)(“Access MSJ”).

         The parties have not filed any Objections to the PFRD, thereby waiving their right to review of the proposed award. 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 findings and recommended disposition in the PFRD proposed by the Honorable Steven C. Yarbrough, United States Magistrate Judge for the United States District Court for the District of New Mexico, are not clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion. Accordingly, the Court will: (i) adopt the PFRD as its own; (ii) deny Aicher's Motion to Amend Complaint; (iii) deny Aicher's Motion for Leave to File Amended Complaint; (iv) deny Aicher's Motion to Quash; (v) grant Defendant Access Correction's Motion to Strike; (vi) deny the Aicher MSJ; and (vii) grant the Access MSJ. Accordingly, the Court will dismiss Aicher's Prisoner's Civil Rights Complaint, filed June 29, 2015 (Doc. 1).

         LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND RECOMMENDATIONS

         District 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 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.” 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).

         “The 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.” One Parcel, 73 F.3d at 1059 (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, ^[1] 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)).

         The 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.”). And, 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 Fed.Appx. 795, 796 (10th Cir. 2007)(unpublished).^[2]

         In 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 hearing 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 ...