United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING SAUCEDO
DEFENDANTS' MOTION TO DISMISS & GRANTING IN PART AND
DENYING IN PART NMT DEFENDANTS' MOTION TO
VÁZQUEZ UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on Plaintiffs Objections (doc.
89) to the Magistrate Judge's Proposed Findings and
Recommended Disposition ("PFRD") (doc.
88). The Magistrate Judge recommended granting in full
Saucedo Defendants' Motion to Dismiss (doc. 78)
and granting in part and denying in part NMT Defendants'
Motion to Dismiss (doc. 76). Having conducted an
independent, de novo review of both Motions to
Dismiss (docs. 76, 78), the attendant briefing
(docs. 79, 80, 81, 83), and the Magistrate
Judge's PFRD (doc. 88), this Court overrules
Plaintiffs objections and adopts the PFRD.
filed his Second Amended Complaint, the operative complaint
in this action, on February 14, 2018.Doc. 75. He alleged
claims against Defendants Board of Regents of the New Mexico
Institute of Mining and Technology, Lone Liebrock, Daniel
Lopez, Warren Ostergren, Kevin Wedeward, and Stephen Wells
("NMT Defendants") and against SaucedoChavez, P.C.
and Christopher Saucedo ("Saucedo Defendants"). On
February 28, 2018, NMT Defendants, who were named in all
counts of the Second Amended Complaint, moved to dismiss all
claims against them except for the Title VI claim of racial
discrimination. Doc. 76. Also on February 28, 2018,
Saucedo Defendants moved to dismiss all claims against them.
Doc. 78. Saucedo Defendants, however, were only
included in Counts I and V of the Second Amended Complaint,
in claims for defamation and a permanent injunction
prohibiting further defamation. Doc. 75 at 19-24.
August 21, 2018, this Court referred the case to Magistrate
Judge Gregory B. Wormuth, pursuant to 28 U.S.C. §§
636(b)(1)(B), (b)(3), and Va. Beach Fed. Sav. & Loan
Ass'n v. Wood, 901 F.2d 849 (10th Cir. 1990).
See doc. 85. The Magistrate Judge subsequently
issued a Proposed Findings and Recommended Disposition
("PFRD") on October 22, 2018. Doc. 88. The
Magistrate Judge recommended dismissal of the following for
failure to state a claim: Counts I and II (constitutional
defamation claims against NMT Defendants and Saucedo
Defendants), Count IV (unconstitutional deprivation of a
property right in application fees under 42 U.S.C. §
1983), and the portion of Count V requesting an Ex Parte
Young injunction prohibiting future defamation. See
Id. at 1, 2, 26-27'. He recommended denial of NMT
Defendants' Motion to Dismiss as it pertained to the
Count V request for injunctive relief against racial
discrimination. See Id. at 27.
filed his objections to the PFRD on November 5, 2018.
Doc. 89. He objects to all of the Magistrate
Judge's recommendations except for the recommendation to
deny NMT Defendants' Motion to Dismiss on the Count V
claim for injunctive relief against racial discrimination.
See Id. at 2. Ultimately, following a de
novo review, the Court finds Plaintiffs objections to be
without merit and adopts the recommendations of the
Motions (docs. 76, 78) were referred to the
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B).
See doc. 85. Under that referral provision, the
Court's standard of review of a magistrate judge's
PFRD is de novo. See 28 U.S.C. § 636(b)(1)(C).
When resolving objections to a magistrate judge's PFRD,
"[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). "[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 1057, 1060 (10th Cir. 1996). Moreover,
"[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 also 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
adopting a PFRD, the district court need not "make any
specific findings; the district court must merely conduct a
de novo review of the record." Garcia v. City of
Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000).
"[T]he district court is presumed to know that de novo
review is required. Consequently, a brief order expressly
stating the court conducted de novo review is
sufficient." Northington v. Marin, 102 F.3d
1564, 1570 (10th Cir. 1996) (citing In re Griego, 64
F.3d at 583-84). "[E]xpress references to de novo review
in its order must be taken to mean it properly considered the
pertinent portions of the record, absent some clear
indication otherwise." Bratcher v. Bray-Doyle Indep.
Sch. Dist. No. 42, 8 F.3d 722, 724 (10th Cir. 1993). A
"terse" order containing one sentence for each of
the party's "substantive claims," which did
"not mention his procedural challenges to the
jurisdiction of the magistrate to hear the motion," has
been held sufficient. Garcia, 232 F.3d at 766. The
Supreme Court has explained that "in 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. 667, 676 (1980)
(quoting 28 U.S.C. § 636(b)) (citingMathews v.
Weber, 423 U.S. 261, 275 (1976)).
Rule of Civil Procedure 12(b)(6) permits the Court to dismiss
a complaint for "failure to state a claim upon which
relief can be granted." Fed.R.Civ.P. 12(b)(6).
Specifically, a complaint must "state a claim to relief
that is plausible on its face." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In
assessing whether a complaint meets this standard, the Court
is to first "identify pleadings that, because they are
no more than conclusions, are not entitled to the assumption
of truth." Id. at 679. Then, accepting only the
well-pleaded factual allegations as true and viewing them in
the light most favorable to the plaintiff, the court is to
consider whether "they plausibly give rise to an
entitlement to relief." Barrett v. Orman, 373
Fed.Appx. 823, 825 (10th Cir. 2010) (unpublished) (quoting
Iqbal, 556 U.S. at 677-78); Casanova v.
Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010). "A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678.
as here, a party is proceeding pro se, the court is
to liberally construe his pleadings. Casanova, 595
F.3d at 1125. "But the court [is] not [to] 'assume
the role of advocate for the pro se litigant.'"
Baker v. Holt, 498 Fed.Appx. 770, 772 (10th Cir.
2012) (unpublished) (quoting Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991)). In other words,
"[t]he broad reading of the plaintiffs complaint does
not relieve the plaintiff of the burden of alleging
sufficient facts on which a recognized legal claim could be
based." Hall, 935 F.2d at 1110.
objects to the Magistrate Judge's recommendation to
dismiss his constitutional defamation claims on the following
grounds: (1) the Fourteenth Amendment guarantees equal
protection and treatment; (2) Plaintiff is not required to
show that he has a constitutional or state right to public
higher education, but only that New Mexico has undertaken to
provide public higher education; (3) Plaintiff was deprived
of his right to equal protection by NMT Defendants'
refusal to admit him based on their defamation; and (4)
Plaintiff has met the requirements of the stigma-plus rule of
Paul v. Davis,4 ...