United States District Court, D. New Mexico
Denise-Bradford: Holmes Mimbres, New Mexico Plaintiff pro se
M. Martinez Law Office of Jonlyn M. Martinez, LLC
Albuquerque, New Mexico Attorney for the Defendants
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
MATTER comes before the Court on: (i) the Magistrate
Judge's Proposed Findings and Recommended Disposition,
filed July 31, 2018 (Doc. 29)(“PFRD”),
recommending that the Court grant the Defendants' Motion
to Dismiss Plaintiff's Complaint, Plaintiff's
Pursuant to Rule 15; Amended and Plaintiff's Addendum to
Supplemental Pleadings, with Prejudice, filed March 26, 2018
(Doc. 16)(“MTD”); and (ii) the Plaintiff's
Motion to Dismiss Arrived on August 3, 2018; Responded to on
August 15 Within the 14 Days as Demanded, filed August 16,
2018 (Doc. 30)(“Objections”), objecting to the
PFRD. Having reviewed all relevant materials and applicable
law, the Court overrules Plaintiff Denise-Bradford:
Holmes' Objections and adopts the Honorable Gregory B.
Wormuth's, United States Magistrate Judge for the
District of New Mexico, PFRD, thereby granting the
February 26, 2018, Holmes filed her Civil Complaint, filed
February 26, 2018 (Doc. 1)(“Complaint”), which
she supplemented on March 14, 2018, and amended on March 20,
2018. See Pursuant to Rule 15; Amended/Supplemental
Pleading, filed March 14, 2018 (Doc. 11)(“Supp.
Complaint”); Pursuant to Rule 15; Amended, filed March
20, 2018 (Doc. 14). Holmes contends that the Grant County
Sheriff and a Grant County Sheriff Deputy violated New Mexico
criminal statutes and her “Natural Rights” and
“Common Law Rights” when they cited and arrested
Holmes, and towed her automobile, allegedly in response to
discovering Holmes driving her vehicle without a driver's
license, automobile registration, or car insurance. Defense
Answer Received on April 3, 2018 Response to Defense Counsel
at 7:21-23, filed April 6, 2018 (Doc.
17)(“Response”). See Complaint at
5:23-7:11; Supp. Complaint at 3:25-4:3. Holmes also alleges
that she is a foreign entity, because her “property and
land are on a foreign domicile, within New Mexico, but
outside New Mexico and the Federal Zone.” Complaint at
2:27-3:1. See id. at 5:9-16. Particularly, Holmes
alleges that she is a diplomat of the foreign state Bradford
Republic, is immune from the enforcement of New Mexico laws
pursuant to the Foreign States Immunities Act, 28 U.S.C.
§§ 1330, 1332, 1391(f), 1441(d), 1602-11
(“FSIA”), and that New Mexico state agents are
prohibited from entering her property. See Complaint
at 3:4-25, 5:1-7:17; Supp. Complaint at 3:11-4:8.
March 26, 2018, the Defendants filed the MTD, arguing that
the Court should dismiss the case because Holmes'
Complaint fails to state a claim upon which relief can be
granted, and because the Defendants are immune from suit.
See MTD at 2-6. The MTD was fully briefed on April
24, 2018. See Defendants' Notice of Completion
of Briefing, filed April 25, 2018 (Doc. 20). On July 13,
2018, the Court referred the MTD to Magistrate Judge Wormuth
for recommended findings and final disposition. See
Order of Reference Relating to Non-Prisoner Pro Se Cases at
1, filed July 13, 2018 (Doc. 28). On July 31, 2018,
Magistrate Judge Wormuth submitted his PFRD recommending that
the Court dismiss Holmes' Complaint for failure to state
a claim. See PFRD at 1. Specifically, Magistrate
Judge Wormuth concluded that, even construing Holmes'
claims liberally, none of the statutes on which Holmes
expressly or impliedly relies for her claims affords a
private right of action.
filed objections to the PFRD on August 16, 2018, arguing that
the Court should not dismiss her Complaint on a number of
grounds, including, among other things, that she has the
fundamental right to travel, that the Defendants waived the
right to assert immunity by filing a MTD rather than an
Answer in response to her Complaint, that she is properly
seeking civil damages for the Defendants' alleged
violations of criminal laws, and that the Defendants -- and
police officers generally -- lack jurisdiction over Holmes.
See Objections at 5:8-8:6, 8:23-27. Further, Holmes
argues that Magistrate Judge Wormuth's conclusion is at
odds with the Labor Management Relations Act of 1947, 29
U.S.C. §§ 141-44, 167, 172-87 (commonly known as
the “Taft-Hartley Act”), on the basis that
restricting Holmes from bringing suit directly under a
criminal statute creates an unlawful “closed shop,
” allowing only bar members to file certain lawsuits.
Objections at 4:15-20.
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) 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. 2121 E. 30th St.,
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 [28 U.S.C. §§ 636-39],
including judicial efficiency.” United States v.
2121 E. 30th St., 73 F.3d at 1059 (citing Niehaus v.
Kan. Bar Ass'n, 793 F.2d 1195, 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.”
United States v. 2121 E. 30th St., 73 F.3d at 1060.
“To further advance the policies behind the
Magistrate's Act, [the Tenth Circuit], like numerous
other circuits, have 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.'” United States v. 2121 E.
30th St., 73 F.3d at 1059 (quoting Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991)). 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, 1031 (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 Fed.Appx. 795, 796 (10th Cir.
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.” United States v.
2121 E. 30th St., 73 F.3d at 1060 (alteration in
original)(quoting Moore v. United States, 950 F.2d
at 659 (“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
United States v. 2121 East 30th Street, 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 ...