Harrison v. Curry et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
HARLON HARRISON,
Plaintiff,
v. 	No. CIV 23-0504 JB/JFR
VISTULA CURRY, ALISHA
TAFOYA-LUCERO, MARLIN
SEJNOHA, and SUMMIT FOOD
SERVICE, LLC.,
Defendants.
MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Magistrate Judge’s Proposed Findings
and Recommended Disposition, filed October 7, 2025 (Doc. 50)(“PFRD”). 	The PFRD
notifies the parties of their ability to file objections within fourteen days and that failure to file
an objection waives appellate review. 	PFRD at 13. 	To date, neither party has filed any
objections, and there is nothing in the record indicating that the PFRD was not delivered. 	The
Court concludes that the PFRD that the Honorable John F. Robbenhaar, United States
Magistrate Judge for the United States District Court for the District of New Mexico, wrote,
is not clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion, and the
Court therefore adopts the PFRD. Accordingly, the Court dismisses this case without prejudice,
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, for Plaintiff Harlan Harrison’s
failure to prosecute.
LAW REGARDING OBJECTIONS TO THE PFRD
District courts may refer dispositive motions to a Magistrate Judge for a recommended
disposition. 	See FED. R. CIV. P. 72(b)(1) (“A magistrate judge must promptly conduct the
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required proceedings when assigned, without the parties’ consent, to hear a pretrial matter
dispositive 	of 	a 	claim or defense or a prisoner petition challenging the conditions of
confinement.”). 	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.” 	FED. R. CIV. P. 72(b)(2). 	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 further
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 accept, 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)(C).
“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, & Contents,
Known as: 2121 E. 30th St., Tulsa Okla., 73 F.3d 1057, 1059 (10th Cir. 1996)(“One Parcel”)
(quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). 	As the United States Court of Appeals
for the Tenth Circuit notes, “the filing of objections advances the interests that underlie the
Magistrate’s Act[, 28 U.S.C. §§ 631-639], 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)).
The Tenth Circuit holds “that a party’s objections to the magistrate judge’s report and
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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 (quoting Moore v. United States, 950 F.2d 656, 659
(10th Cir.1991)). 	“[O]nly an objection that is sufficiently specific to focus the district court’s
attention on the factual and legal issues that are truly in dispute will advance the policies behind
the Magistrate’s Act.” 	One Parcel, 73 F.3d at 1060. 	In addition to requiring specificity in
objections, the Tenth Circuit states 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, 1030-31 (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 states that “the district court correctly held
that [a plaintiff] had waived argument by failing to raise it before the magistrate.” Pevehouse v.
Scibana, 229 F. App’x 795, 796 (10th Cir. 2007).1
1 Pevehouse v. Scibana is an unpublished Tenth Circuit opinion, but the Court can rely on
a Tenth Circuit unpublished opinion to the extent its reasoned analysis is persuasive in the case
before it. See 10th Cir. R. 32.1(A) (“Unpublished decisions are not precedential, but may be cited
for their persuasive value.”). The Tenth Circuit states:
In this circuit, unpublished orders are not binding precedent, . . . [a]nd we have
generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its
disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). 	The Court concludes that
Pevehouse v. Scibana has persuasive value with respect to a material issue, and will assist the
Court in its disposition of this Memorandum Opinion and Order.
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The Tenth Circuit also notes, “however, that ‘[t]he waiver rule as a procedural bar need
not be applied when the interests of justice so dictate.’” 	One Parcel, 73 F.3d at 1060 (quoting
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)(“We join those circuits that have
declined to apply the waiver rule to a pro se litigant’s failure to object when the magistrate’s
order does not apprise the pro se litigant of the consequences of a failure to object to findings
and recommendations.”)). 	In One Parcel, the Tenth Circuit notes that the district judge decides
sua sponte to conduct a de novo review despite the lack of specificity in the objections, but the
Tenth Circuit holds that it deems the issues waived on appeal, because such actions advance the
interests underlying the waiver rule. 	See 73 F.3d at 1060-61 (citing cases from other Courts of
Appeals where district courts elect to address merits despite potential application of waiver rule,
but Courts of Appeals opt to enforce waiver rule).
Where a party files timely and specific objections to the Magistrate Judge’s PFRD
“on . . . dispositive motions, the statute calls for a de novo determination, not a de novo hearing.”
United States v. Raddatz, 447 U.S. 667, 674 (1980) (“Raddatz”). 	The Tenth Circuit states that
a de novo determination, pursuant to 28 U.S.C. § 636(b), “requires the district court to consider
relevant evidence of record and not merely review the magistrate judge’s recommendation.” 	In
re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). 	The Supreme Court of the United States notes
that, although a district court must make a de novo determination of the objections to
recommendations under 28 U.S.C. § 636(b)(1), the district court may rely on the Magistrate
Judge’s PFRD. 	See Raddatz, 447 U.S. at 676 (“[I]n providing for a ‘de novo determination’
rather than de novo hearing, Congress intended to permit whatever reliance a district judge, in
the exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and
recommendations.”)(quoting 28 U.S.C. § 636(b)(1)). 	See Bratcher v. Bray-Doyle Indep. Sch.
Dist. No. 42 of Stephens Cnty., Okla., 8 F.3d 722, 724-25 (10th Cir. 1993)(holding that the
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district court’s adoption of the Magistrate Judge’s “particular reasonable-hour estimates” is
consistent with a de novo determination, because “the district court ‘may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate.’”)
(quoting 28 U.S.C. § 636(b)(1) (emphasis in Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42 of
Stephens Cnty., Okla., but not in 28 U.S.C. § 636(b)(1)).
Where no party objects to the Magistrate Judge's PFRD, the Court reviews, as a matter of
course and in the interests of justice, the Magistrate Judge's recommendations. In Pablo v. Soc.
Sec. 	Admin., 	No. 	CIV 	11-0132 	JB/ACT, 	2013 	WL 	1010401 	(D.N.M. 	February 	27,
2013)(Browning, J.), the plaintiff fails to respond to the Magistrate Judge's PFRD, and thus waives
his right to appeal the recommendations, but the Court nevertheless conducts a review. See 2013
WL 1010401, at *1, *4. 	The Court generally does not, however, “review the PFRD de novo,
because the parties have not objected thereto, but rather review[s] the recommendations to
determine whether they are clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion.” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *4. 	The Court, thus, does not
determine independently what it would do if the issues had come before the Court first, when there
is no objection, but rather adopts the PFRD where “‘the Court cannot say that the Magistrate
Judge's recommendation . . . is clearly erroneous, arbitrary, obviously contrary to law, or an abuse
of discretion.’” Pablo v. Soc. Sec. Admin., 2013 WL 1010401, at *3 (quoting Workheiser v. City
of Clovis, No. CIV 12–0485 JB/GBW, 2012 WL 6846401, at *3 (D.N.M. December 28,
2012)(Browning, J.). See Alexandre v. Astrue, No. CIV 11-0384 JB/SMV, 2013 WL 1010439, at
*4 (D.N.M. February 27, 2013)(Browning, J.)(“The Court rather reviewed the findings and
recommendations . . . to determine if they are clearly erroneous, arbitrary, obviously contrary to
law, or an abuse of discretion. The Court determines that they are not, and will therefore adopt
the PFRD.”); Trujillo v. Soc. Sec. Admin., No. CIV 12-1125 JB/KBM, 2013 WL 1009050, at *5
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(D.N.M. February 28, 2013)(Browning, J.)(adopting the proposed findings and conclusions, and
noting: “The Court did not review the ARD de novo, because Trujillo has not objected to it, but
rather reviewed the . . . findings and recommendation to determine if they are clearly erroneous,
arbitrary, obviously contrary to law, or an abuse of discretion, which they are not.”). This review,
which is deferential to the Magistrate Judge's work when there is no objection, nonetheless
provides some review in the interest of justice, and seems more consistent with the waiver rule's
intent than no review at all or a full-fledged review. Accordingly, the Court considers this standard
of review appropriate. See Thomas v. Arn, 474 U.S. at 151 (“There is nothing in those Reports,
however, that demonstrates an intent to require the district court to give any more consideration to
the magistrate's report than the court considers appropriate.”).
This review, which is deferential to the Magistrate Judge’s work when there is no
objection, nonetheless provides some review in the interest of justice, and seems more
consistent with the waiver rule’s intent than no review at all or a full-fledged review.
Accordingly, the Court considers this standard of review appropriate. 	See Thomas v. Arn,
474 U.S. at 151 (“There is nothing in those Reports, however, that demonstrates an intent to
require the district court to give any more consideration to the magistrate’s report than the court
considers appropriate.”). The Court is reluctant to have no review at all if its name is going
at the bottom of the order adopting the Magistrate Judge’s PFRD.
ANALYSIS
The Court reviews carefully the PFRD. 	The Court does not review the PFRD de novo,
because the parties do not object to it, but rather reviews Magistrate Judge Robbenhaar’s PFRD
to determine if it is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion. 	The Court determines that the PFRD is not clearly erroneous, arbitrary, obviously
contrary to law, or an abuse of discretion. 	Accordingly, the Court adopts the PFRD.
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IT IS ORDERED that: (i) the Magistrate Judge’s Proposed Findings and Recommended
Disposition, filed October 7, 2025 (Doc. 50), is adopted; (ii) this matter is dismissed without
prejudice; (iii) the Defendants Vistula Curry and Alisha Tafoya-Lucero’s Motion for Summary
Judgment, filed April 28, 2025 (Doc. 45), is denied; (iv) the Defendants Marlin Sejnoha and
Summit Food Service, LLC’s Motion for Summary Judgment, filed May 1, 2025 (Doc. 47) is
denied; and (iv) a Final Judgment is entered concurrently herewith.
________________________________
UNITED STATES DISTRICT JUDGE
Parties and Counsel:
Harlon Harrison
Espanola, New Mexico
Plaintiff Pro Se
Daniel R. Dolan, II
Dolan & Associates, P.C.
Albuquerque, New Mexico
Attorneys for Defendants Vistula Curry and Alisha Tafoya-Lucero
Michael Steven Rumac
Spiri A. Gaines
Gordon Rees Scully Mansukhani
Albuquerque, New Mexico
Attorneys for Defendant Marlin Se
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