Newsome v. Geo Grp., Inc.

THOMAS NEWSOME, Plaintiff, v. THE GEO GROUP, INC., et al., Defendants.

No. CV 12-733 MCA/GBW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

September 29, 2015

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on (1) Plaintiff's Motion to Vacate (doc. 76) the Court's order denying his first Motion to Vacate (doc. 74); (2) Defendants' Martinez Report, in which Defendants move for summary judgment (doc. 69); (3) Plaintiff's Motion to Strike the Martinez Report (doc. 77); and (4) Plaintiff's Motion to Strike Bad Faith Affidavits attached to the Martinez Report (doc. 85). The Magistrate Judge entered Proposed Findings and Recommend Disposition (PFRD) addressing Defendants' moving for summary judgment in the Martinez Report and Plaintiff's Motion to Strike the Martinez Report in its entirety. Doc. 82. Plaintiff timely filed objections to the PFRD (doc. 86). Being fully advised, the Court will overrule the objections, adopt the PFRD in part, and grant Defendants' request for summary judgment (doc. 69).

I. STANDARD OF REVIEW

This case was referred to Magistrate Judge Wormuth pursuant to Title 28 U.S.C. § 636(b)(1)(B), (b)(3), and Virginia Beach Fed. Sav. & Loan Ass'n v. Wood, 901 F.2d 849 (10th Cir. 1990). Doc. 3. Two of the matters presently before the Court were addressed in the Magistrate Judge's PFRD. When resolving objections to a magistrate judge's PFRD, "[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). The 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. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996). "Issues 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).

II. PROCEDURAL BACKGROUND

Plaintiff initiated this action on July 5, 2012. Doc. 1. Most of his claims were dismissed after the Court adopted the Magistrate Judge's earlier PFRD recommending that Defendants' Motion to Dismiss be granted. Docs. 20, 23, 40, 42, 52. Thereafter, on May 20, 2014, the Magistrate Judge ordered Defendants to produce a Martinez Reportregarding the incidents underlying Plaintiff's remaining claims. Doc. 63. The Order to File a Martinez Report included the following disclaimer:

THE PARTIES ARE HEREBY GIVEN NOTICE that the Martinez Report may be used in deciding whether to grant summary judgment on Plaintiff's claims, whether by motion or sua sponte; as such the parties should submit whatever materials they consider relevant to Plaintiff's claims.

Id. at 5 (emphasis in original). The order also notified Plaintiff that his response to the Martinez Report must be filed within thirty days of the Report's filing. Id. at 4.

On June 5, 2014, before the Martinez Report was filed, Plaintiff objected to the Order to File a Martinez Report, asserting that the Prison Litigation Reform Act (PLRA) superseded the practice of using Martinez Reports. Doc. 65. The Magistrate Judge overruled his objections on August 7, 2014. Doc. 68. On August 19, 2014, the Martinez Report, in which Defendants moved for summary judgment, was filed. Doc. 69. Thus, Plaintiff's deadline to respond to the Martinez Report and motion for summary judgment was September 18, 2014. On the same day the Martinez Report was filed, however, Plaintiff again challenged the filing of the Martinez Report by moving to vacate the order overruling his objections to the Order to File a Martinez Report. Doc. 70. Plaintiff did not, however, seek an extension of time to respond to the Martinez Report at that time.

On February 17, 2015, the Court denied Plaintiff's Motion to Vacate the Order. Doc. 74. Notwithstanding the Court's rejection of his attacks on the Martinez Report,Plaintiff again refused to file a substantive response to the Report. Instead, on March 9, 2015, Plaintiff filed a motion to vacate the order denying his previous motion to vacate. Doc. 76. Plaintiff also filed a Motion to Strike the Martinez Report the same day. Doc. 77. He again failed to request an extension of time to respond to the substance of the Report.

More than a month after Plaintiff's third and fourth attempts to strike the Martinez Report (docs. 76, 77), and more than eight months since the Martinez Report was filed, the Magistrate Judge entered a PFRD addressing Plaintiff's Motion to Strike (doc. 77) and Defendants' motion for summary judgment (doc. 69). Doc. 82. The PFRD did not address Plaintiff's Motion to Vacate the Order on Motion to Vacate. Doc. 76. The Magistrate Judge recommended that, if the Court deemed it appropriate to deny Plaintiff's second Motion to Vacate (doc. 76) and also agreed that Plaintiff's Motion to Strike (doc. 77) should be denied, the Court should grant Defendants' motion for summary judgment and dismiss Plaintiff's claims of First Amendment retaliation against Defendants Chavez, Rogers, Bradley, Fralick, and Bravo, which are the sole remaining claims. Doc. 82.

Because Plaintiff had not addressed the substance of the Martinez Report in any of his filings, the Magistrate Judge adopted the facts as set forth in that Report. Doc. 82 at 3 n. 1. Based on those facts, the Magistrate Judge concluded that "Plaintiff failed to levy grievances alleging retaliation against Defendants Chavez, Bradley, and Fralick,and did not pursue his grievances against Defendants Rogers and Bravo through the final level of administrative review." Id. at 23. The Magistrate Judge further concluded that Plaintiff had therefore failed to exhaust his administrative remedies as required by the PLRA. Id.

Upon Plaintiff's motion, the Magistrate Judge granted Plaintiff an extension of time and an increased number of pages within which to file his objections to the PFRD. Doc. 84. On July 13, 2015, Plaintiff filed his objections to the PFRD, as well as a motion to strike affidavits that had been attached to the Martinez Report. Docs. 85, 86.

Thus, the matters presently before the Court are (1) Plaintiff's Motion to Vacate the Order on Motion to Vacate (doc. 76); (2) Plaintiff's Objections (doc. 86) to the Magistrate Judge's PFRD (doc. 82) recommending that the Court deny Plaintiff's Motion to Strike the Martinez Report (doc. 77) and grant Defendants' request for summary judgment (doc. 69); and (3) Plaintiff's Motion to Strike Bad Faith Affidavits (doc. 85).

III. MOTION TO VACATE ORDER DENYING MOTION TO VACATE (DOC. 76)

As noted above, Plaintiff objected to the Magistrate Judge ordering a Martinez Report (doc. 65), the Magistrate Judge issued an order overruling those objections (doc. 68), and the Court refused to vacate that order (docs. 70, 74). While the instant motion is titled "Motion to Vacate Doc. 74," Plaintiff's arguments do not address "Doc. 74," which is the Court's Memorandum Opinion and Order refusing to vacate the order requiring Defendants to file a Martinez Report. Doc. 74. Instead, Plaintiff's argumentsin this Motion to Vacate are directed at what he perceives to be the Magistrate Judge's ruling on earlier dispositive matters. Doc. 76. As such, the Court will not reconsider its previous ruling in the previous order denying the first Motion to Vacate. Doc. 74. Instead, the Court will consider the second Motion to Vacate (doc. 76) as objecting to the dispositive rulings that have occurred in this case.

Plaintiff argues that "Prisoner civil cases may not be assigned to an Article II judicial officer to preside over all 'dispositive motions, evidentiary hearings and trial.'" Id. at 1 (emphasis in original). To support this assertion, Plaintiff cites to the local rule that sets forth the ways in which cases are assigned to Magistrate Judges and District Judges and the ability of parties to consent to having a Magistrate Judge act as a presiding judge. D.N.M.LR-Civ. 73.1(a)-(b). Plaintiff's reliance, however, is misplaced. While the rule provides for how cases are assigned, it does not speak to the manner in which cases may be referred by a District Judge to a Magistrate Judge. The latter is governed by 28 U.S.C. § 636.

Under 28 U.S.C. § 636(b)(1)(A)-(B), a district judge "may . . . designate a magistrate judge to conduct hearings, including evidentiary hearings, and 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) [which includes motions to dismiss, motions for judgment on the pleadings, and motions for summary judgment] . . . and of prisoner petitions challenging conditions of confinement." TheSupreme Court has held that nonconsensual referrals under 28 U.S.C. § 636(b)(1)(B) are permitted in "cases alleging a specific episode of unconstitutional conduct by prison administrators" as well as "challenges to ongoing prison conditions." McCarthy v. Bronson, 500 U.S. 136, 138 (1991). Thus, the Court's referral of this case, which alleges episodes of unconstitutional conduct by prison administrators, to the Magistrate Judge was and is appropriate.

Moreover, the required procedures that accompany a referral under 28 U.S.C. § 636 have been followed in this case. Under 28 U.S.C. § 636(b)(1)(C), the magistrate judge is required to file proposed findings and recommendations for matters referred under 28 U.S.C. § 636(b)(1)(B), and the parties must thereafter be afforded fourteen days to "serve and file written objections." After the time period for objections lapses,

A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or

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