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Holmes v. Grant County Sheriff Department

United States District Court, D. New Mexico

September 26, 2018

DENISE-BRADFORD HOLMES, Plaintiff,
v.
GRANT COUNTY SHERIFF DEPARTMENT, AND OTHERS IN DISCOVERY, Defendants.

          Denise-Bradford: Holmes Mimbres, New Mexico Plaintiff pro se

          Jonlyn M. Martinez Law Office of Jonlyn M. Martinez, LLC Albuquerque, New Mexico Attorney for the Defendants

          MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

         THIS 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 Defendants' MTD.

         PROCEDURAL BACKGROUND

         On 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.

         On 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.

         Holmes 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.

         STANDARD OF REVIEW

         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 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).

         “The 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)).

         The 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. 2007)(unpublished).[1]

         The 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 ...


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