1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Deyoe R Harris, No. CV-20-00338-TUC-SHR
10 Plaintiff, ORDER
11 v.
12 United States of America,
13 Defendant. 14 15 Pending before the Court is a Report and Recommendation issued by United 16 States Magistrate Judge Lynnette C. Kimmins (Doc. 13). The Report and 17 Recommendation recommends entering an order dismissing Plaintiff’s Complaint for 18 lack of subject matter jurisdiction. See Doc. 13 at 3. Plaintiff filed objections to the 19 Report and Recommendation (Doc. 14).1 Plaintiff also filed a Motion for Status Update 20 regarding the Court’s ruling on his objections (Doc. 15). 21 As a threshold matter, as to any new evidence, arguments, and issues that were not 22 timely and properly raised before United States Magistrate Judge Kimmins, the Court 23 exercises its discretion to not consider those matters and considers them waived. United 24 States v. Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has 25 discretion, but is not required, to consider evidence presented for the first time in a party's 26 objection to a magistrate judge's recommendation . . . [I]n making a decision on whether 27 to consider newly offered evidence, the district court must . . . exercise its discretion . . .
28 1 Unless otherwise noted by the Court, internal quotes and citations have been omitted when citing authority throughout this Order. 1 [I]n providing for a de novo determination rather than de novo hearing, Congress 2 intended to permit whatever reliance a district judge, in the exercise of sound judicial 3 discretion, chose to place on a magistrate judge's proposed findings and 4 recommendations . . . The magistrate judge system was designed to alleviate the 5 workload of district courts . . . To require a district court to consider evidence not 6 previously presented to the magistrate judge would effectively nullify the magistrate 7 judge's consideration of the matter and would not help to relieve the workload of the 8 district court. Systemic efficiencies would be frustrated and the magistrate judge's role 9 reduced to that of a mere dress rehearser if a party were allowed to feint and weave at the 10 initial hearing, and save its knockout punch for the second round . . . Equally important, 11 requiring the district court to hear evidence not previously presented to the magistrate 12 judge might encourage sandbagging. [I]t would be fundamentally unfair to permit a 13 litigant to set its case in motion before the magistrate, wait to see which way the wind 14 was blowing, and—having received an unfavorable recommendation—shift gears before 15 the district judge.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 2003) 16 (“Finally, it merits re-emphasis that the underlying purpose of the Federal Magistrates 17 Act is to improve the effective administration of justice.”).2 18 As to the objections filed by Plaintiff, the Court has conducted a de novo review of 19 the record. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after being served with 20 [the Report and Recommendation], any party may serve and file written objections to 21 such proposed findings and recommendations as provided by rules of court. A judge of 22 the court shall make a de novo determination of those portions of the report or specified 23 proposed findings or recommendations to which objection is made. A judge of the court 24 may accept, reject, or modify, in whole or in part, the findings or recommendations made 25 by the magistrate judge. The judge may also receive further evidence or recommit the 26 matter to the magistrate judge with instructions.”).
27 2 Assuming, arguendo, that such matters were not subject to waiver, the Court (in the alternative) has nonetheless conducted a de novo review, and upon review of the record 28 and authority herein, rejects these issues and adopts the Report and Recommendation in its entirety. 1 In addition to reviewing the Report and Recommendation and any objections and 2 responsive briefing thereto, the Court’s de novo review of the record includes review of 3 the record and authority before United States Magistrate Judge Kimmins which led to the 4 Report and Recommendation in this case. 5 Upon de novo review of the record and authority herein, the Court finds Plaintiff’s 6 objections to be without merit, rejects those objections, and adopts United States 7 Magistrate Judge Kimmins’ Report and Recommendation (Doc. 13) in its entirety. See, 8 e.g., United States v. Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled 9 by statute to de novo review of the subject. Under Raddatz [447 U.S. 667 (1980)] the 10 court may provide this on the record compiled by the magistrate. Rodriguez treats 11 adoption of the magistrate's report as a sign that he has not received his due. Yet we see 12 no reason to infer abdication from adoption. On occasion this court affirms a judgment on 13 the basis of the district court's opinion. Affirming by adoption does not imply that we 14 have neglected our duties; it means, rather, that after independent review we came to the 15 same conclusions as the district judge for the reasons that judge gave, rendering further 16 explanation otiose. When the district judge, after reviewing the record in the light of the 17 objections to the report, reaches the magistrate's conclusions for the magistrate's reasons, 18 it makes sense to adopt the report, sparing everyone another round of paper.”); Bratcher 19 v. Bray-Doyle Independent School Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 20 (10th Cir. 1993) (“De novo review is statutorily and constitutionally required when 21 written objections to a magistrate's report are timely filed with the district court . . . The 22 district court's duty in this regard is satisfied only by considering the actual testimony [or 23 other relevant evidence in the record], and not by merely reviewing the magistrate's 24 report and recommendations . . . On the other hand, we presume the district court knew of 25 these requirements, so the express references to de novo review in its order must be taken 26 to mean it properly considered the pertinent portions of the record, absent some clear 27 indication otherwise . . . Plaintiff contends . . . the district court's [terse] order indicates 28 the exercise of less than de novo review . . . [However,] brevity does not warrant 1 look[ing] behind a district court's express statement that it engaged in a de novo review of 2 the record.”); Murphy v. International Business Machines Corp., 23 F.3d 719, 722 (2nd 3 Cir. 1994) (“We . . . reject Murphy's procedural challenges to the granting of summary 4 judgment . . . Murphy's contention that the district judge did not properly consider her 5 objections to the magistrate judge's report . . . lacks merit. The judge's brief order 6 mentioned that objections had been made and overruled.
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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Deyoe R Harris, No. CV-20-00338-TUC-SHR
10 Plaintiff, ORDER
11 v.
12 United States of America,
13 Defendant. 14 15 Pending before the Court is a Report and Recommendation issued by United 16 States Magistrate Judge Lynnette C. Kimmins (Doc. 13). The Report and 17 Recommendation recommends entering an order dismissing Plaintiff’s Complaint for 18 lack of subject matter jurisdiction. See Doc. 13 at 3. Plaintiff filed objections to the 19 Report and Recommendation (Doc. 14).1 Plaintiff also filed a Motion for Status Update 20 regarding the Court’s ruling on his objections (Doc. 15). 21 As a threshold matter, as to any new evidence, arguments, and issues that were not 22 timely and properly raised before United States Magistrate Judge Kimmins, the Court 23 exercises its discretion to not consider those matters and considers them waived. United 24 States v. Howell, 231 F.3d 615, 621-623 (9th Cir. 2000) (“[A] district court has 25 discretion, but is not required, to consider evidence presented for the first time in a party's 26 objection to a magistrate judge's recommendation . . . [I]n making a decision on whether 27 to consider newly offered evidence, the district court must . . . exercise its discretion . . .
28 1 Unless otherwise noted by the Court, internal quotes and citations have been omitted when citing authority throughout this Order. 1 [I]n providing for a de novo determination rather than de novo hearing, Congress 2 intended to permit whatever reliance a district judge, in the exercise of sound judicial 3 discretion, chose to place on a magistrate judge's proposed findings and 4 recommendations . . . The magistrate judge system was designed to alleviate the 5 workload of district courts . . . To require a district court to consider evidence not 6 previously presented to the magistrate judge would effectively nullify the magistrate 7 judge's consideration of the matter and would not help to relieve the workload of the 8 district court. Systemic efficiencies would be frustrated and the magistrate judge's role 9 reduced to that of a mere dress rehearser if a party were allowed to feint and weave at the 10 initial hearing, and save its knockout punch for the second round . . . Equally important, 11 requiring the district court to hear evidence not previously presented to the magistrate 12 judge might encourage sandbagging. [I]t would be fundamentally unfair to permit a 13 litigant to set its case in motion before the magistrate, wait to see which way the wind 14 was blowing, and—having received an unfavorable recommendation—shift gears before 15 the district judge.”); United States v. Reyna-Tapia, 328 F.3d 1114, 1122 (9th Cir. 2003) 16 (“Finally, it merits re-emphasis that the underlying purpose of the Federal Magistrates 17 Act is to improve the effective administration of justice.”).2 18 As to the objections filed by Plaintiff, the Court has conducted a de novo review of 19 the record. See 28 U.S.C. § 636(b)(1)(C) (“Within fourteen days after being served with 20 [the Report and Recommendation], any party may serve and file written objections to 21 such proposed findings and recommendations as provided by rules of court. A judge of 22 the court shall make a de novo determination of those portions of the report or specified 23 proposed findings or recommendations to which objection is made. A judge of the court 24 may accept, reject, or modify, in whole or in part, the findings or recommendations made 25 by the magistrate judge. The judge may also receive further evidence or recommit the 26 matter to the magistrate judge with instructions.”).
27 2 Assuming, arguendo, that such matters were not subject to waiver, the Court (in the alternative) has nonetheless conducted a de novo review, and upon review of the record 28 and authority herein, rejects these issues and adopts the Report and Recommendation in its entirety. 1 In addition to reviewing the Report and Recommendation and any objections and 2 responsive briefing thereto, the Court’s de novo review of the record includes review of 3 the record and authority before United States Magistrate Judge Kimmins which led to the 4 Report and Recommendation in this case. 5 Upon de novo review of the record and authority herein, the Court finds Plaintiff’s 6 objections to be without merit, rejects those objections, and adopts United States 7 Magistrate Judge Kimmins’ Report and Recommendation (Doc. 13) in its entirety. See, 8 e.g., United States v. Rodriguez, 888 F.2d 519, 522 (7th Cir. 1989) (“Rodriguez is entitled 9 by statute to de novo review of the subject. Under Raddatz [447 U.S. 667 (1980)] the 10 court may provide this on the record compiled by the magistrate. Rodriguez treats 11 adoption of the magistrate's report as a sign that he has not received his due. Yet we see 12 no reason to infer abdication from adoption. On occasion this court affirms a judgment on 13 the basis of the district court's opinion. Affirming by adoption does not imply that we 14 have neglected our duties; it means, rather, that after independent review we came to the 15 same conclusions as the district judge for the reasons that judge gave, rendering further 16 explanation otiose. When the district judge, after reviewing the record in the light of the 17 objections to the report, reaches the magistrate's conclusions for the magistrate's reasons, 18 it makes sense to adopt the report, sparing everyone another round of paper.”); Bratcher 19 v. Bray-Doyle Independent School Dist. No. 42 of Stephens County, Okl., 8 F.3d 722, 724 20 (10th Cir. 1993) (“De novo review is statutorily and constitutionally required when 21 written objections to a magistrate's report are timely filed with the district court . . . The 22 district court's duty in this regard is satisfied only by considering the actual testimony [or 23 other relevant evidence in the record], and not by merely reviewing the magistrate's 24 report and recommendations . . . On the other hand, we presume the district court knew of 25 these requirements, so the express references to de novo review in its order must be taken 26 to mean it properly considered the pertinent portions of the record, absent some clear 27 indication otherwise . . . Plaintiff contends . . . the district court's [terse] order indicates 28 the exercise of less than de novo review . . . [However,] brevity does not warrant 1 look[ing] behind a district court's express statement that it engaged in a de novo review of 2 the record.”); Murphy v. International Business Machines Corp., 23 F.3d 719, 722 (2nd 3 Cir. 1994) (“We . . . reject Murphy's procedural challenges to the granting of summary 4 judgment . . . Murphy's contention that the district judge did not properly consider her 5 objections to the magistrate judge's report . . . lacks merit. The judge's brief order 6 mentioned that objections had been made and overruled. We do not construe the brevity 7 of the order as an indication that the objections were not given due consideration, 8 especially in light of the correctness of that report and the evident lack of merit in 9 Murphy's objections.”); Gonzales-Perez v. Harper, 241 F.3d 633 (8th Cir. 2001) (“When 10 a party timely objects to a magistrate judge's report and recommendation, the district 11 court is required to make a de novo review of the record related to the objections, which 12 requires more than merely reviewing the report and recommendation . . . This court 13 presumes that the district court properly performs its review and will affirm the district 14 court's approval of the magistrate's recommendation absent evidence to the contrary . . . 15 The burden is on the challenger to make a prima facie case that de novo review was not 16 had.”); Brunig v. Clark, 560 F.3d 292, 295 (5th Cir. 2009) (“Brunig also claims that the 17 district court judge did not review the magistrate's report de novo . . . There is no 18 evidence that the district court did not conduct a de novo review. Without any evidence to 19 the contrary . . . we will not assume that the district court did not conduct the proper 20 review.”).3 21 3 See also Pinkston v. Madry, 440 F.3d 879, 893-894 (7th Cir. 2006) (the district court's 22 assurance, in a written order, that the court has complied with the de novo review requirements of the statute in reviewing the magistrate judge's proposed findings and 23 recommendation is sufficient, in all but the most extraordinary of cases, to resist assault on appeal; emphasizing that “[i]t is clear that Pinkston's argument in this regard is 24 nothing more than a collateral attack on the magistrate's reasoning, masquerading as an assault on the district court's entirely acceptable decision to adopt the magistrate's opinion 25 . . .”); Garcia v. City of Albuquerque, 232 F.3d 760 (10th Cir. 2000) (“The district court's order is terse . . . However, neither 28 U.S.C. § 636(b)(1) nor Fed.R.Civ.P. 72(b) requires 26 the district court to make any specific findings; the district court must merely conduct a de novo review of the record . . . It is common practice among district judges . . . to 27 [issue a terse order stating that it conducted a de novo review as to objections] . . . and adopt the magistrate judges' recommended dispositions when they find that magistrate 28 judges have dealt with the issues fully and accurately and that they could add little of value to that analysis. We cannot interpret the district court's [terse] statement as □□ CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED as follows: 3 (1) United States Magistrate Judge Lynnette C. Kimmins’ Report and 4 Recommendation (Doc. 13) is accepted and adopted in its entirety. 5 (2) Plaintiff's objections (Doc. 14) are rejected. 6 (3) Plaintiff's Complaint and this action are DISMISSED for lack of subject matter 7 jurisdiction. The Clerk of the Court shall docket accordingly and close the case file 8 in this matter. 9 (4) Plaintiff's Motion for Status Update (Doc. 15) is GRANTED, as this order 10 provides a resolution to this action. 11 12 Dated this 23rd day of March, 2021. 13 14 ‘| at 16 Honorable Scott H. Rash □□□ United States District Judge 17 18 19 20 21 22 — establishing that it failed to perform the required de novo review ... We hold that 24 although the district court's decision is terse, this is insufficient to demonstrate that the court failed to review the magistrate's recommendation de novo.”), Goffman v. Gross, 59 || F.3d 668, 671 (7" Cir. 1995) (“The district court is required to conduct a de novo determination of those portions of the magistrate judge's report and recommendations to which objections have been filed. But this de novo determination is not the same as a de novo hearing . . . [I]f following a review of the record the district court is satisfied with 27! the magistrate judge's findings and recommendations it may in its discretion treat those 28 findings and recommendations as its own.”).
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