United States District Court, D. New Mexico
CASSANDRA C DE BACA, as Personal Representative of the ESTATE OF BEN C DE BACA, deceased, Plaintiff,
TOWN OF BERNALILLO, ex rel. TOWN OF BERNALILLO POLICE DEPARTMENT; OFFICER JEREMIAH BENJEY, sued in his individual capacity; OFFICER SHAWN VIGIL, sued in his individual capacity; COUNTY OF SANDOVAL, ex rel. SANDOVAL COUNTY SHERIFF'S DEPARTMENT; OFFICER PATRICK SEGURA, sued in his individual capacity, SERGEANT JAMES LAPORTE, sued in his individual capacity; OFFICER JOHN DOE, 1-10, sued in their individual capacities, Defendants.
Assed Richard J. Moran Law Office of Ahmad Assed Kevin P.
Holmes Holmes Law Firm Attorneys for the Plaintiff
P. Sullivan Christina L. Brennan Brennan & Sullivan, P.A.
Attorneys for Town of Bernalillo, ex rel. Town of Bernalillo
Town of Bernalillo Police Department, Officer Jeremiah
Benjey, and Officer Shane Vigil
Michael Dickman Law Office of Michael Dickman Attorney for
Defendants County of Sandoval and Officer Patrick Segura
W. Becker YLAW, P.C. Attorneys for Defendant Sergeant James
AMENDED MEMORANDUM OPINION AND ORDER ADOPTING THE
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED
MATTER comes before the Court on: (i) the Joint
Motion to Approve Settlement, filed December 14, 2018 (Doc.
70)(“Motion”); and (ii) the Magistrate
Judge's Proposed Findings and Recommended Disposition,
filed February 4, 2019 (Doc. 82)(“PFRD”). The
parties agreed to waive their objection period. See
PFRD at 7. The Court concludes that the conclusions of the
Honorable Laura Fashing, United States Magistrate Judge for
the District of New Mexico, are not clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of
discretion, and the Court therefore adopts them. The Court
therefore approves the proposed settlement between Plaintiff
Cassandra C de Baca and Defendants Town of Bernalillo and the
Town of Rio Rancho as it relates to the three minor
beneficiaries of Ben C de Baca's wrongful death estate
and grants the Motion.
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.” 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)(internal quotation marks
omitted)(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.” United States v.
2121 E. 30th St., 73 F.3d at 1059 (citing Niehaus v.
Kan. Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir.
1986); United States v. Walters, 638 F.2d 947, 949
(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 polices 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.'” 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)).
“[O]nly an objection that is sufficiently specific to
focus the district court's attention to the factual and
legal issues that are truly in dispute will advance the
policies behind the Magistrate's Act . . . .”
United States v. 2121 E. 30th St., 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 order and
judgment, 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
United States v. 2121 East 30th Street, the Tenth
Circuit, in accord with other Courts of Appeals, expanded the
waiver rule to cover objections that are timely but too
general. See United States v. 2121 E. 30th
St., 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)(hereafter
Senate Report); H.R. Rep. No. 94-1609, p. 11 (1976), U.S.
Code Cong. & Admin. News 1976, p. 6162 (hereafter 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)(hereafter 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