United States District Court, D. New Mexico
Paul Jones Albuquerque, New Mexico Plaintiff pro se
C. Anderson United States Attorney Erin Langenwalter
Assistant United States Attorney United States Attorney's
Office Albuquerque, New Mexico Attorneys for the Defendant
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Magistrate
Judge's Proposed Findings of Fact and Recommended
Disposition, filed April 3, 2018 (Doc.
49)(“PFRD”). Based upon a review of the relevant
law and the record -- including the evidence presented in
regard to the Plaintiff's Motion for Summary Judgment,
filed January 11, 2018 (Doc. 20)(“Jones MSJ”) as
well as that presented in regard to the Defendant's
Motion for Summary Judgment and Supporting Memorandum, filed
February 27, 2018 (Doc. 41)(“HHS MSJ”), the
Honorable Kirtan Khalsa, United States Magistrate Judge for
the United States District Court of the District of New
Mexico, has recommended that the Court grant the HHS MSJ, and
deny the Jones MSJ as moot. PFRD at 1, 2 n.2. Plaintiff John
Paul Jones filed a Response to Proposed Findings of Fact and
Recommended Disposition, filed April 16, 2018 (Doc.
52)(“Objections”), in which he raises objections
to the PFRD, and requests that the Court disregard Magistrate
Judge Khalsa's recommendation and, instead, grant summary
judgment in his favor or, in the alternative, hold a hearing
on the issues raised therein. See Objections at
25-27. The Court has reviewed the PFRD and Jones'
Objections. For the reasons discussed herein, the Objections
do not have a sound basis in the material fact and applicable
law. The Court adopts Magistrate Judge Khalsa's PFRD.
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, “[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
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,  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 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, 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). “[O]nly an
objection that is sufficiently specific to focus the district
court's attention on the factual and legal issues that
are truly in dispute will advance the policies behind the
Magistrate's Act.” One Parcel, 73 F.3d at
1060. 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 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.
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) (hereinafter Senate
Report); H.R. Rep. No. 94-1609, p. 11 (1976), U.S. Code Cong.
& Admin. News 1976, p. 6162 (hereinafter 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) (hereinafter 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 (footnotes
Tenth Circuit has 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 Appeals where
district courts elected to address merits despite potential
application of waiver rule, but Courts of Appeals 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). The Tenth Circuit has stated that a de novo
determination, pursuant to 28 U.S.C. § 636(b),
“requires the district court to consider relevant
evidence of record and not merely review the magistrate
judge's recommendation.” In re Griego, 64
F.3d 580, 583-84 (10th Cir. 1995). The Supreme Court of the
United States of America has noted that, although a district
court must make a de novo determination of the objections to
recommendations under 28 U.S.C. § 636(b)(1), the
district court is not precluded from relying on the
Magistrate Judge's proposed findings and recommendations.
See United States v. Raddatz, 447 U.S. at 676
(“[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.”)(quoting 28 U.S.C. § 636(b)(1));
Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42 of
Stephens Cnty., Okla., 8 F.3d 722, 724-25 (10th Cir.
1993) (holding that the district court's adoption of the
Magistrate Judge's “particular reasonable hour
estimates” is consistent with a de novo determination,
because “the district court ‘may accept, ...