Belhomme v. Gibson ex rel. Shinseki

59 F. Supp. 3d 1076, 2014 U.S. Dist. LEXIS 160036, 2014 WL 6065676
CourtDistrict Court, D. New Mexico
DecidedOctober 16, 2014
DocketNo. CIV 14-0646 JB/LAM
StatusPublished

This text of 59 F. Supp. 3d 1076 (Belhomme v. Gibson ex rel. Shinseki) is published on Counsel Stack Legal Research, covering District Court, D. New Mexico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Belhomme v. Gibson ex rel. Shinseki, 59 F. Supp. 3d 1076, 2014 U.S. Dist. LEXIS 160036, 2014 WL 6065676 (D.N.M. 2014).

Opinion

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) Plaintiffs Brought Motion Incorporating Reiterating Made Ag[1079]*1079grieved 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 Belhom-me 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 thé 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 informa pau-peris ”); (iv) dismiss the Plaintiffs Complainant and Entry of Appearance for as Along with the Plaintiffs 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 Plaintiffs so Suffered the Agency’s Gross Abusive Wrongful Employment Termination: Violation of the Plaintiffs Civil Rights: Diversity-Employment Discrimination: Fraud: Libel: Verbal Assault and Slander as During the Plaintiffs Employment at the U.S. Department of Veterans Affairs, filed July 15, 2014 (Doc. 1), which appears to be Belhom-me’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 farther 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 [1080]*1080accept, 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 [1081]*1081standard, when neither party objects to those findings.

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Bluebook (online)
59 F. Supp. 3d 1076, 2014 U.S. Dist. LEXIS 160036, 2014 WL 6065676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/belhomme-v-gibson-ex-rel-shinseki-nmd-2014.