United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING MOTION TO VACATE
OR MODIFY POSTAGE PLAN ORDER
VÁZQUEZ UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendants' Objections
(doc. 173) to the Magistrate Judge's
Proposed Findings and Recommended Disposition
(“PFRD”) (doc. 171). The Magistrate
Judge recommended denying Defendants' Motion Pursuant to
Rule 60 Fed.R.Civ.P. to Vacate or Modify September 30, 2011
Postage Plan Order (doc. 163). Having conducted an
independent, de novo review of the Motion (doc.
163), the attendant briefing (docs. 167,
169), and the Magistrate Judge's PFRD (doc.
171), this Court overrules Defendants' objections
and adopts the PFRD.
facts of this case have been repeatedly recited, most
recently in this Court's Order of February 2, 2018.
See doc. 153 at 1-3. The Court here reviews only the
facts relevant to the instant Motion.
Motion to Vacate or Modify was filed on October 3, 2018.
Doc. 163. However, the postage plan that Defendants
seek to vacate or modify dates back to a September 30, 2011
order by this Court. Doc. 129. The Court had
previously adopted the Report and Recommendations (doc.
105) of the Magistrate Judge in finding that Plaintiff
Jesse Trujillo, a New Mexico prisoner housed in Virginia, was
being denied legal access. See doc. 120. The Court
consequently ordered Defendants to “file with the Court
a plan that will enable Plaintiff to send legal requests and
grievances to the NMCD [New Mexico Corrections Department] at
no expense to himself.” Id. at 5. Defendants
complied, filing a Plan to Allow Postage Free Legal Request
by Plaintiff to NMCD. Doc. 121. In it, Defendants
proposed that (1) NMCD would initially provide Plaintiff with
three standard pre-stamped envelopes and that, thereafter,
(2) NMCD would enclose a pre-stamped envelope in any response
or reply sent to Plaintiff. See id. at 1. The Court
adopted Defendants' proposed plan in the September 30,
2011 Order Adopting Postage Plan (“Postage Plan
Order”). See doc. 129. At this juncture, the
Court also entered its Final Judgment. Doc. 130.
five years later, on August 4, 2016, Plaintiff moved to
reopen the case and find Defendants in contempt due to their
failure to comply with the Postage Plan Order. Doc.
147. The Court declined to reopen the case, but granted
Plaintiff's Motion as it pertained to enforcement of the
In this case, Plaintiff Trujillo's Motion and the Court
record establish the existence of the Court's September
30, 2011 Order, that Defendants have knowledge of that Order,
and that Defendants have ceased to comply with the Order.
Defendants do not contend that they have continued to comply
with the Order or could not comply but, instead, seek to have
the Court relieve them of further obligation to comply. The
Court finds that Defendants have not complied with the
Court's September 30, 2011 Order and will impose a
Doc. 153 at 5 (internal citations omitted). This
Memorandum Opinion and Order alerted Defendants that if they
wished to request modification of the injunction, they would
be required to file a motion to that effect.
subsequently filed their Motion to Vacate or Modify the
Postage Plan. Doc. 163. Plaintiff filed a Response
arguing against modification of the Postage Plan Order
(doc. 167), and Defendants filed a Reply (doc.
169). Pursuant to the Court's Order of Reference
(doc. 15), the Magistrate Judge filed his Proposed
Findings and Recommended Disposition on November 27, 2018.
Doc. 171. Defendants timely filed their Objections
to the PFRD on December 11, 2018. Doc. 173.
28 U.S.C. § 636(b)
prisoner case was referred to the Magistrate Judge to conduct
hearings and perform legal analysis pursuant to 28 U.S.C.
§ 636(b)(1)(B). See doc. 15. 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 waived.”)
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, ” was 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))
(citing Mathews v. Weber, 423 U.S. 261, 275 (1976)).
Defendants move the Court to modify or vacate the Postage
Plan Order pursuant to Federal Rule of Civil Procedure 60(b).
Rule 60(b) permits a court to grant “relief from a
final judgment, order, or proceeding” on several
enumerated grounds. Fed.R.Civ.P. 60(b). It is an
“extraordinary” remedy that “may only be
granted in exceptional ...