Bacote Jr v. Federal Bureau of Prisons

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 17-cv-03111-RM-NRN
MICHAEL BACOTE, JR.,
Plaintiff,
v.
FEDERAL BUREAU OF PRISONS,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before the Court on Plaintiff’s Objection (ECF No. 74) to the Magistrate
Judge’s order (ECF No. 70) granting Defendant’s Motion to Stay Discovery (ECF No. 57)
pending a determination on Defendant’s Motion to Dismiss (ECF No. 56). With the Court’s
permission, Defendant filed a response. Upon consideration of the applicable filings, the
transcript of the hearing before the Magistrate Judge, and relevant case law, Plaintiff’s Objection
is OVERRULED.
I. 	BACKGROUND 1
Plaintiff, then proceeding pro se, filed this action on December 22, 2017. Thereafter,
Plaintiff filed four other complaints, with the most recent one filed on August 2, 2019. (ECF
Nos. 10, 13, 24, 55.) The latter two were filed with the assistance of counsel. Defendant was not
served until February 2019.
In response to the most recent complaint, Defendant filed a Motion to Dismiss along with
1 The parties are familiar with the background of this case so it will only be briefly summarized here.
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the Motion to Stay Discovery that is at issue. In the Motion to Dismiss, Defendant argued
Plaintiff’s claims are barred by the settlement in the Cunningham litigation and fail under Fed. R.
Civ. P. 12(b)(6).
The Court referred to the Magistrate Judge the Motion to Dismiss for a recommended
disposition and the Motion to Stay. The Magistrate Judge held a hearing on the Motion to Stay
and orally granted the motion. In doing so, the Magistrate Judge precluded all formal discovery;
he did not, however, preclude Plaintiff from informally obtaining his medical files. (ECF No.
73, p. 67.) Plaintiff’s Objection followed. Thereafter, on November 8, 2019, the Magistrate
Judge issued a recommendation (ECF No. 92) that Defendant’s Motion to Dismiss be granted
except as to part of Plaintiff’s Second Claim for Relief. The Magistrate Judge also lifted the stay
in part to allow discovery to go forward on that part of the claim for which dismissal is not
recommended. (ECF No. 93.)
II. 	LEGAL STANDARD
Pursuant to Rule 72(a) of the Federal Rules of Civil Procedure this Court “must consider
timely objections and modify or set aside any part of the [magistrate judge’s] order that is clearly
erroneous or is contrary to law.”
III. 	ANALYSIS
Plaintiff argues the Magistrate Judge’s Order was clearly erroneous or contrary to law
because: (1) he failed to issue a written order or read such an order into the record as required
under Fed. R. Civ. P. 72(a); (b) he failed to “appropriately” balance the String Cheese2 factors;
and (3) he failed to adhere to the law of this District by conducting an “preliminary peek” of the
merits of the Motion to Dismiss. The Court examines – and rejects – each argument in turn.
2 String Cheese Incident, LLC v. Stylus Shows, Inc., No. 02-cv-01934-LTB-PAC, 2006 WL 894955, at *2 (D. Colo.
Mar. 30, 2006).
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First, under the applicable rule, “[w]hen a pretrial matter not dispositive of a party’s
claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must
promptly conduct the required proceedings and, when appropriate, issue a written order stating
the decision.” Fed. R. Civ. P. 72(a) (emphasis added). Thus, there is no requirement of a written
order much less a requirement to read such an equivalent order into the record. Moreover, there
is a written transcript of the entire hearing and, thus, a full record by which the Court can – and
did – conduct a meaningful review of what the Magistrate Judge considered and determined.
Thus, this argument is rejected.
Next, this District often applies the String Cheese factors in deciding motions to stay.
However, no judge – or magistrate judge – is required to follow or apply the String Cheese
factors. After all, “‘[a] decision of a federal district court judge is not binding precedent in either
a different judicial district, the same judicial district, or even upon the same judge in a different
case.’” Camreta v. Greene, 563 U.S. 692, 709 n.7 (2011) (quoting 18 J. Moore et al., Moore’s
Federal Practice § 134.02[1] [d], p. 134–26 (3d ed. 2011)). Regardless, the Court’s review of the
hearing transcript shows the Magistrate Judge was well aware of and considered the String
Cheese factors. That Plaintiff disagrees with the Magistrate Judge’s analysis, or the weight he
apparently assigned to any factor, fails to show his decision was clearly erroneous or contrary to
law.
Finally, the Magistrate Judge’s decision to consider a non-String Cheese factor also does
not render his decision clearly erroneous or contrary to law. Here, the Magistrate Judge
indicated he was taking a preliminary peek at the merits of the Motion to Dismiss. There is no
controlling law, however, which precludes such a consideration. Nor can the Court say that to
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do so in this instance3 was clearly erroneous. First, the Motion to Dismiss was before the
Magistrate Judge for a recommendation as to the merits. Further, and importantly, the parties’
briefing and oral argument addressed the merits of the Motion to Dismiss as it was raised in
conjunction with, and relative to, the merits of the Motion to Stay. (See Plaintiff’s Response to
Motion to Stay, ECF No. 63 at pp. 7-10.) Accordingly, the Court finds the decision of the
Magistrate Judge to consider this factor in this instance was reasonable and not clearly
erroneous.4
IV. 	CONCLUSION
Based on the foregoing, it is ORDERED that Plaintiff’s Objection to United States
Magistrate Judge’s Order on Motion to Stay Discovery (ECF No. 74) is OVERRULED.
DATED this 13th day of November, 2019.
BY THE COURT:
____________________________________
RAYMOND P. MOORE
United States District Judge
3 The Court renders no opinion on whether such a peek would be clearly erroneous under different facts and
circumstances. For example, while Plaintiff had not yet filed his response to the Motion to Dismiss, its merits were
nonetheless raised in the Motion to Stay briefing and in oral argument. And, Plaintiff was afforded an opportunity
to address this peek in his objection.
4 The Court also rejects Plaintiff’s contention that defense counsel provided testimony – as opposed to argument –
during the hearing.
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