Vilela v. Office of Recovery Services

• Court: Court of Appeals for the Tenth Circuit
• Decided: May 29, 2024
• Docket: 23-4096
• Status: Unpublished

Opinion

Appellate Case: 23-4096 Document: 010111056716 Date Filed: 05/29/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT May 29, 2024 _________________________________ Christopher M. Wolpert Clerk of Court PEDRO M. VILELA,

Plaintiff - Appellant,

v. No. 23-4096 (D.C. No. 2:22-CV-00699-DBB) OFFICE OF RECOVERY SERVICES; (D. Utah) STATE OF UTAH CHILD SUPPORT ENFORCEMENT; LIESA STOCKDALE, in her official and private capacity; UTAH COUNTY FOURTH DISTRICT COURT; AMY JONKHART, in her official and private capacity; MARIAN H. ITO, in her official and private capacity,

Defendants - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before MATHESON, EID, and CARSON, Circuit Judges. _________________________________

Pedro Vilela, appearing pro se, appeals the district court’s judgment

dismissing his civil rights action without prejudice for failure to prosecute and the

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 23-4096 Document: 010111056716 Date Filed: 05/29/2024 Page: 2

court’s denial of his post-judgment filings. Exercising jurisdiction under 28 U.S.C.

§ 1291, we affirm.

I. BACKGROUND

A provision of the Federal Magistrates Act, 28 U.S.C. § 636, delineates the

authority of federal magistrate judges. Section 636(c) provides that, in a civil action

and “[u]pon the consent of the parties,” a magistrate judge may conduct all

proceedings and enter judgment. Short of that, a “judge may designate a magistrate

judge to hear and determine any pretrial matter pending before the court,” except for

certain enumerated motions, including a motion to dismiss for failure to state a claim

for relief. § 636(b)(1)(A). “[A] judge may also designate a magistrate judge . . . to

submit to a judge of the court proposed findings of fact and recommendations for the

disposition, by a judge of the court, of any motion excepted in subparagraph (A).”

§ 636(b)(1)(B). Designations under § 636(b)(1) do not require the parties’ consent.

See First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000) (“[W]here

the parties [do] not consent to proceeding before the magistrate judge, the district

court may designate a magistrate judge to consider various matters [under] § 636(b).”

(citation omitted)); see also Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th

Cir. 2000) (“Unlike . . . § 636(c)(1), . . . § 636(b)(1)(B) does not require the consent

of the parties.”).

In this case, Vilela did not consent to a magistrate judge presiding over the

entire case under § 636(c)(1), but a magistrate judge was designated under

§ 636(b)(1). When defendants moved for an extension of time to file an answer to

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Vilela’s amended complaint, the magistrate judge granted the motion based on a

finding of good cause and excusable neglect. Vilela objected and moved to recuse

the magistrate judge, arguing he had ruled without Vilela’s consent and had unfairly

assisted defendants. The district court overruled the objection and denied recusal,

explaining to Vilela that designation of a magistrate judge under § 636(b)(1) does not

require the parties’ consent and concluding that granting the extension of time was

authorized and proper under the governing legal standard. The court declined to

recuse the magistrate judge because Vilela had asserted only dissatisfaction with the

magistrate judge’s conclusions.

At the heart of this appeal is the magistrate judge’s “Ruling & Order,” R. at 58

(capitalization normalized), which involved defendants’ motion to dismiss Vilela’s

amended complaint for, among other things, failure to state a claim for relief and

failure to comply with the pleading requirements of Federal Rule of Civil

Procedure 8. The magistrate judge concluded the amended complaint did not meet

Rule 8’s requirements, in part because of a nearly complete lack of factual

allegations. But instead of granting the motion to dismiss, the magistrate judge

“RECOMMEND[ED]” denying the motion to dismiss without prejudice and

“ORDERED” Vilela to file a second amended complaint by April 24, 2023. R. at 63.

The magistrate judge warned Vilela that the “[f]ailure to do so may result in a

recommendation to dismiss the action.” Id.

Vilela filed a timely objection to the Ruling & Order, arguing that because he

had not consented, the Ruling & Order exceeded the magistrate judge’s authority

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under § 636(b)(1)(B). The district court overruled the objection. The court

concluded Vilela had merely “rehashe[d] the consent argument that the court ha[d]

previously rejected.” R. at 80 (footnote omitted). And finding no error in the Ruling

& Order, the district court adopted its recommendation, denied defendants’ motion to

dismiss without prejudice, and ordered Vilela to file a second amended complaint by

May 8, 2023.

Vilela never filed a second amended complaint. Instead, he filed an

“objection” to the district court’s order (really, a motion for reconsideration) and two

requests for a ruling on that objection. After the May 8 deadline passed, the

magistrate judge issued a “Report and Recommendation” (R&R). R. at 103

(capitalization normalized). The magistrate judge recommended dismissing the case

without prejudice for failure to prosecute pursuant to Federal Rule of Civil

Procedure 41(b).

Vilela filed a timely objection to the R&R but continued to take issue with the

Ruling & Order, arguing that by ordering Vilela to file a second amended complaint

and denying the motion to dismiss, the magistrate judge exceeded his authority under

§ 636(b)(1)(B). Vilela noted that in the R&R, the magistrate judge stated he had (in

the Ruling & Order) “‘denied Defendants’ Motion to Dismiss.’” R. at 113 (quoting

R. at 103). Vilela therefore concluded that he “had no obligation to abide by the . . .

Ruling & Order.” R. at 109 (capitalization normalized). Vilela also accused the

magistrate judge and the district court of criminally conspiring to violate his due

process rights.

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The district court rejected these arguments. The court observed that in the

Ruling & Order, the magistrate judge had only recommended denying the motion to

dismiss, and that was within the authority granted by § 636(b)(1)(B). The court also

noted that regardless, it had separately ordered Vilela to file a second amended

complaint. The court next determined that the remainder of Vilela’s objection was

“general” in nature and “cast[] unfounded aspersions” at both the magistrate judge

and the court. R. at 120. The court found that Vilela “is not confused about what he

needs to do (file a second amended complaint to address the deficiencies identified in

the magistrate judge’s order), nor does he lack the ability to take the required action.

Instead, he simply does not want to comply with the orders issued.” Id. (footnote

omitted). The court further found that “Vilela does not intend to file a second

amended complaint, but instead to continue insisting that he need not.” R. at 121.

After explaining that even a pro se litigant must “comply with procedural rules” and

finding no error in the R&R, the district court overruled Vilela’s objection, adopted

the R&R, and dismissed the action without prejudice pursuant to Rule 41(b). Id.

(internal quotation marks omitted). The court acknowledged Vilela’s pending

objection to the court’s order adopting the Ruling & Order but did not separately rule

on it. The court entered a separate judgment.

Vilela then filed a motion for reconsideration, which the district court denied.

The court rejected Vilela’s argument that the Ruling & Order exceeded the magistrate

judge’s authority under § 636(b)(1)(B) because Vilela had not consented to the

magistrate judge’s participation, again explaining that designating a magistrate judge

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to issue recommendations on dispositive matters “is not contingent on Mr. Vilela’s

consent to the magistrate judge’s participation.” R. at 141 (brackets and internal

quotation marks omitted). The court also rejected Vilela’s argument that the

magistrate judge lacked authority to order Vilela to file a second amended complaint

because that order did not involve any of the motions enumerated in § 636(b)(1)(A)

that a magistrate judge may not determine. In the alternative, the district court

pointed out that even if the magistrate judge lacked authority to recommend or order

Vilela to file a second amended complaint, the court itself had ordered him to do so,

and Vilela’s failure to comply with the court’s order resulted in dismissal of his

action.

Vilela filed an objection to that ruling, asserting the same general arguments.

He also filed a notice of appeal. The district court overruled the objection as “both

procedurally unsupported and substantively without merit.” R. at 153.

II. DISCUSSION

“We review dismissals under Rule 41(b) for abuse of discretion.” Nasious v.

Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007). Because

Vilela filed his motion for reconsideration and his objection to the order denying that

motion within 28 days of the judgment and questioned the judgment, we review the

denial of those filings for an abuse of discretion. See Hayes Fam. Tr. v. State Farm

Fire & Cas. Co., 845 F.3d 997, 1004 (10th Cir. 2017) (treating such motions as filed

under Fed. R. Civ. P. 59(e) and reviewing for an abuse of discretion). A district court

abuses its discretion if its ruling “was arbitrary, capricious, whimsical, or manifestly

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unreasonable,” or the court made “an error of law.” Pueblo of Jemez v. United

States, 63 F.4th 881, 889 (10th Cir. 2023) (internal quotation marks omitted). We

afford a pro se litigant’s filings a liberal construction, but we may not act as his

advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

Vilela contends that based on his refusal to consent to the magistrate judge’s

authority, he was not obligated to file a second amended complaint because the

magistrate judge’s Ruling & Order was a “final order” denying defendants’ motion to

dismiss and therefore in excess of the magistrate judge’s authority under

§ 636(b)(1)(B). Aplt. Opening Br. at 3; see also id. at 8 (“[T]he magistrate [judge]

clearly denied a motion to dismiss.”). Vilela’s argument rests largely on the title of

the first recommendation—Ruling & Order—and on the magistrate judge’s statement

in the R&R that he had, in the Ruling & Order, “denied Defendants’ Motion to

Dismiss,” R. at 103. Vilela accuses the district court of trying to “cover up” the

magistrate judge’s violation of § 636(b)(1)(B) by referring to the Ruling & Order as a

recommendation and then adopting it. Aplt. Opening Br. at 4, 6. And he contends

the magistrate judge should have been recused for abusing his authority under § 636.

These arguments ignore the realities of this case and elevate form over

substance. Despite the title of the Ruling & Order and the magistrate judge’s later

statement that he had denied the motion to dismiss, the magistrate judge provided

only a recommendation—in all capital letters—on defendants’ motion to dismiss.

See R. at 63 (“For the reasons stated, the Court RECOMMENDS that Defendants’

Motion to Dismiss the Amended Complaint be DENIED WITHOUT PREJUDICE.”).

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That recommendation is entirely consistent with the authority granted by

§ 636(b)(1)(B) and, as the district court explained to Vilela, does not depend on the

parties’ unanimous consent to the magistrate judge’s jurisdiction. See First Union

Mortg. Corp., 229 F.3d at 995; Garcia, 232 F.3d at 766.

Vilela complains the district court did not rule on his objection to the court’s

order adopting the Ruling & Order despite that he twice asked the court to do so. But

given our conclusion that the district court did not err in adopting the Ruling &

Order’s recommendation, we consider the court’s failure to rule on the objection

harmless. Vilela has not demonstrated otherwise.

Vilela argues the district court did not address all the issues he raised in his

objection to the R&R, his post-judgment motion for reconsideration, and his

objection to the dismissal order. In his opening brief, however, he fails to identify

what those allegedly unaddressed issues are or explain how consideration of them

would have altered the outcome in the district court or on appeal. We therefore

conclude he has waived review of this argument through inadequate briefing. See

Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (“[A]rguments that are

inadequately presented in an opening brief” or “presented only in a perfunctory

manner” are “abandoned or waived” (brackets and internal quotation marks

omitted)).

Vilela contends the district court dismissed his action without making

adequate factual findings and legal conclusions and without examining “the actual

procedural history of the case,” Aplt. Opening Br. at 11. Our review of the record,

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however, indicates the district court was well aware of the procedural history of this

case. See SEC v. Power Res. Corp., 495 F.2d 297, 298 (10th Cir. 1974) (explaining

that although “[t]here is no precise rule as to what circumstances justify a dismissal

for failure to prosecute,” a court must examine “the procedural history of [the]

case”). It also indicates the court provided adequate findings of fact and conclusions

of law before dismissing the action.

Finally, Vilela appears to argue the district court lacked jurisdiction to deny

his objection to the dismissal order because he filed his notice of appeal while that

objection was pending. He is mistaken. See Fed. R. Civ. P. 62.1(a)(2) (“If a timely

motion is made for relief that the court lacks authority to grant because of an appeal

that has been docketed and is pending, the court may . . . deny the motion.”).

III. CONCLUSION

We affirm the district court’s judgment and its rulings denying Vilela’s

post-judgment filings.

Entered for the Court

Allison H. Eid Circuit Judge