Belhomme v. Gibson, No. CIV 14–0646 JB/LAM.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtJAMES O. BROWNING, District Judge.
Citation59 F.Supp.3d 1076
PartiesRenaud BELHOMME, Plaintiff, v. Sloan D. GIBSON (Acting) for Eric K. Shinseki, Secretary, U.S. Department of Veterans Affairs, Defendants.
Docket NumberNo. CIV 14–0646 JB/LAM.
Decision Date16 October 2014

59 F.Supp.3d 1076

Renaud BELHOMME, Plaintiff
v.
Sloan D. GIBSON (Acting) for Eric K. Shinseki, Secretary, U.S. Department of Veterans Affairs, Defendants.

No. CIV 14–0646 JB/LAM.

United States District Court, D. New Mexico.

Filed Oct. 16, 2014.


59 F.Supp.3d 1078

Renaud Belhomme Albuquerque, NM, Plaintiff pro se.

MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Magistrate Judge's Proposed Findings and Recommended Disposition, filed on September 18, 2014 (Doc. 6)(“PF & RD”); and (ii) Plaintiff's Brought Motion Incorporating Reiterating Made Aggrieved

59 F.Supp.3d 1079

Victim's Establishing About How, When and Why the Employer So Influential Maliciously Conspired Very Irreparable Clandestine Diversity–Wrongful Employment Termination Discrimination: Frauds: Libel: Verbal Assault and Slander ... With Which Now Before the Court Comes, Moves and States Renaud Belhomme as in response to Satisfy the United States District Court Judge: O. Browning's Dated September 18, 2013; Order, Pursuant to 28 U.S.C. 636(b)(1)(B), (b)(3) ; and 1915(e)(2)(b),1 filed October 9, 2014 (Doc. 7), which appears to be objections to the PF & RD (“Objections”). The primary issues are whether the Court will: (i) overrule the Objections; (ii) adopt the PF & RD; (iii) grant Belhomme's Application to Proceed in District Court Without Prepaying Fees or Costs, filed July 15, 2014 (Doc. 3)(“Motion to Proceed in forma pauperis ”); (iv) dismiss the Plaintiff's Complainant and Entry of Appearance for as Along with the Plaintiff's Legal Action, this Case Now Brought in Equity to the United States District Court District Court for the District of New Mexico Given Contemporaneous Notice and Motion as the Result of the Agency's Established Decision dated April 11, 2014; Denial Against the Plaintiff's so Suffered the Agency's Gross Abusive Wrongful Employment Termination: Violation of the Plaintiff's Civil Rights: Diversity–Employment Discrimination: Fraud: Libel: Verbal Assault and Slander as During the Plaintiff's Employment at the U.S. Department of Veterans Affairs, filed July 15, 2014 (Doc. 1), which appears to be Belhomme's Complaint (“Complaint”); and (v) allow Belhomme fourteen days from the date of this Order in which to file a motion to amend the Complaint. The Court has reviewed the PF & RD and the Objections, and concludes that the Objections lack a sound basis in the law and facts. Accordingly, the Court will: (i) overrule the Objections; (ii) adopt the PF & RD; (iii) grant the Motion to Proceed in forma pauperis; (iv) dismiss the Complaint without prejudice; and (v) allow Belhomme fourteen days from the date of this Order in which to file a motion to amend his Complaint.

LAW REGARDING PROPOSED FINDINGS AND RECOMMENDATIONS

District courts may refer dispositive motions to a magistrate judge for a recommended disposition. Lester v. Harada, CIV 13–0127 JB/KBM, 2013 WL 6503532 (D.N.M. Nov. 30, 2013) (Browning, J.)(citing 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.” 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
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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).

“ ‘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. One Parcel of Real Prop., with Bldgs., Appurtenances, Improvements, and Contents, 73 F.3d 1057, 1059 (10th Cir.1996) (“One Parcel ”)(quoting Thomas v. Arn, 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (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.” One Parcel, 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, 950 (6th Cir.1981) ).

The Tenth Circuit 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.” One Parcel, 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.’ ” One Parcel, 73 F.3d at 1059 (citations omitted). 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 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).2

In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, expanded the waiver rule to cover objections that are timely but too general. See One Parcel, 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—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
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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 with the magistrate's report would
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1 practice notes
  • United States v. Ballou, No. CR 14–2579 JB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 16, 2014
    ...admit the judgment of Jaquez' misdemeanor conviction under rule 404(b), see Tr. at 56:21–57:14 (Benjamin), so the Court will grant the 59 F.Supp.3d 1076United States' request to exclude it, see Second MIL at 3. The Court knows little about the incident underlying the conviction, so this rul......
1 cases
  • United States v. Ballou, No. CR 14–2579 JB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • October 16, 2014
    ...admit the judgment of Jaquez' misdemeanor conviction under rule 404(b), see Tr. at 56:21–57:14 (Benjamin), so the Court will grant the 59 F.Supp.3d 1076United States' request to exclude it, see Second MIL at 3. The Court knows little about the incident underlying the conviction, so this rul......

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