Kuykendall v. New Mexico Judicial Standards Commission

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BRANDON K. KUYKENDALL,
Plaintiff,
v. 	No. CIV 25-0608 JB/GJF
NEW MEXICO JUDICIAL STANDARDS
COMMISSION,
Defendant.
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 on Defendant’s Motion to Dismiss, filed on February 9, 2026 (Doc.
21)(“PFRD”). The PFRD notifies the parties of their ability to file objections within fourteen days
and that the failure to file objections waived appellate review. See PFRD at 13. Objections to the
PFRD were due by February 23, 2026. See PFRD at 13. The parties have not filed any objections.
Because the Court concludes that the PFRD is not clearly erroneous, arbitrary, obviously contrary
to law, or an abuse of discretion, the Court therefore adopts the PFRD. Accordingly, the Court
grants the Defendant New Mexico Judicial Standards Commission’s Motion to Dismiss for Failure
to State a Claim Upon Which Relief Can Be Granted, filed July 2, 2025 (Doc. 4), and dismisses
this case.
LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
RECOMMENDATIONS
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
required proceedings when assigned, without the parties’ consent, to hear a pretrial matter
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dispositive 	of 	a 	claim 	or 	defense 	or 	a 	prisoner 	petition 	challenging 	the 	conditions 	of
confinement.”). Rule 72(b)(2) of the Federal Rules of Civil Procedure 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).
“The filing of objections to a magistrate [judge]’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 Property, With Buildings, Appurtenances, Improvements, and
Contents, Known As: 2121 East 30th Street, 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 has noted, “the filing of objections advances the interests that
underlie the Magistrate’s Act,[1 ] including judicial efficiency.” One Parcel, 73 F.3d at 1059 (citing
Niehaus v. Kansas Bar Ass’n, 793 F.2d 1159, 1165 (10th Cir. 1986); United States v. Walters, 638
1 Congress enacted the Federal Magistrates Act, 28 U.S.C. §§ 631-39, in 1968.
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F.2d 947, 949 (6th Cir. 1981)).
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.” 	One Parcel, 73 F.3d at 1060. “To further advance the
policies behind the Magistrate’s Act, [the Tenth Circuit], like numerous other circuits, ha[s]
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 has stated 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, 1031 (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 stated that “the district court correctly
held that [a petitioner] had waived [an] argument by failing to raise it before the magistrate.”
Pevehouse v. Scibana, 229 F. App’x 795, 796 (10th Cir. 2007) (unpublished).2
2 Pevehouse v. Scibana is an unpublished opinion, but the Court can rely on an 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 has stated:
In this circuit, unpublished orders are not binding precedent, . . . and 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.
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The Tenth Circuit has also noted, “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
[judge’]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 noted that the district judge
decided sua sponte to conduct a de novo review despite the lack of specificity in the objections,
but the Tenth Circuit held that it would deem the issues waived on appeal because such actions
would advance the interests underlying the waiver rule. See 73 F.3d at 1060-61 (citing cases from
other Courts of Appeals where district courts elected to address merits despite potential application
of waiver rule, but Courts of Appeals opted 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.” Raddatz,
447 U.S. at 674. The Tenth Circuit has stated 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 has noted 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
is not precluded from relying on the Magistrate Judge’s proposed findings and recommendations.
See Raddatz, 447 U.S. at 676 (“[I]n providing for a ‘de novo determination’ rather than de novo
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005) (citing In re Citation of Unpublished
Opinions/Ords. & Judgments, 151 F.R.D. 470 (10th Cir. 1993)). 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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hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound
judicial 	discretion, 	chose 	to 	place 	on 	a 	magistrate 	[judge]’s 	proposed 	findings 	and
recommendations.” (quoting 28 U.S.C. § 636(b)(1)); Bratcher v. Bray-Doyle Indep. Sch. Dist. No.
42 of Stephens Cty., Okla., 8 F.3d 722, 724-25 (10th Cir. 1993)(holding that the 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,’ . . . [as] ‘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))
(emphasis in Bratcher).
Where no party objects to the Magistrate Judge’s proposed findings and recommended
disposition, the Court has, as a matter of course in the past and in the interests of justice, reviewed
the Magistrate Judge’s recommendations. 	In Workheiser v. City of Clovis, No. CIV 12-0485
JB/GBW, 2012 WL 6846401 (D.N.M. Dec. 28, 2012) (Browning, J.), where the plaintiff failed to
respond to the Magistrate Judge’s proposed findings and recommended disposition, although the
Court determined that the plaintiff “has waived his opportunity for the Court to conduct review of
the factual and legal findings in the [proposed findings and recommended disposition],” the Court
nevertheless conducted such a review. 2012 WL 6846401, at *3. The Court generally does not,
however, review the Magistrate Judge’s proposed findings and recommended disposition de novo,
and determine independently necessarily what it would do if the issues had come before the Court
first, but rather adopts the proposed findings and recommended disposition where “[t]he Court
cannot say that the Magistrate Judge’s recommendation . . . is clearly erroneous, arbitrary,
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[obviously]3 contrary to law, or an abuse of discretion.” Workheiser v. City of Clovis, 2012 WL
6846401, at *3.
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
intent of the waiver rule 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 to go at the bottom of the order
adopting the Magistrate Judge’s proposed findings and recommendations.
3 The Court previously used as the standard for review when a party does not object to the
Magistrate Judge’s proposed findings and recommended disposition whether the recommendation
was “clearly erroneous, arbitrary, contrary to law, or an abuse of discretion,” thus omitting
“obviously” in front of contrary to law. Solomon v. Holder, No. CIV 12-1039 JB/LAM, 2013 WL
499300, at *4 (D.N.M. Jan. 31, 2013)(Browning, J.)(adopting the recommendation to which there
was no objection, stating: “The Court determines that the PFRD is not clearly erroneous, arbitrary,
contrary to law, or an abuse of discretion, and accordingly adopts the recommendations therein.”);
O’Neill 	v. 	Jaramillo, 	No. 	CIV 	11-0858 	JB/GBW, 	2013 	WL 	499521 	(D.N.M. 	Jan. 	31,
2013)(Browning, J.)(“Having reviewed the PRFD under that standard, the Court cannot say that
the Magistrate Judge’s recommendation is clearly erroneous, arbitrary, contrary to law, or an abuse
of discretion. The Court thus adopts [Magistrate] Judge Wormuth’s PFRD.” (citing Workheiser v.
City of Clovis, 2012 WL 6846401, at *3)); Galloway v. JP Morgan Chase & Co., No. CIV 12-
0625 JB/RHS, 2013 WL 503744 (D.N.M. Jan. 31, 2013)(Browning, J.)(adopting the Magistrate
Judge’s recommendations upon determining that they were not “clearly contrary to law, or an abuse
of discretion.”). The Court does not believe that “contrary to law” accurately reflects the deferential
standard of review that the Court intends to use when there is no objection. Finding that a
Magistrate Judge’s recommendation is contrary to law would require the Court to analyze the
Magistrate Judge’s application of law to the facts or the Magistrate Judge’s delineation of the facts
-- in other words performing a de novo review, which is required when a party objects to the
recommendations only. The Court believes adding “obviously” better reflects that the Court is not
performing a de novo review of the Magistrate Judges’ recommendations. Going forward,
therefore, the Court will review, as it has done for some time now, Magistrate Judges’
recommendations to which there are no objections for whether the recommendations are clearly
erroneous, arbitrary, obviously contrary to law, or an abuse of discretion.
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ANALYSIS
The Court carefully reviews the PFRD and the Complaint, filed June 27, 2025 (Doc. 1).
The Court does not conduct a de novo review, because the parties have not objected to the PFRD.
Rather, the Court reviews the PFRD to determine if it is “clearly erroneous, arbitrary, contrary to
law, or an abuse of discretion.” The Court determines that they are not. Accordingly, the Court
will adopt the recommendations.
IT IS ORDERED that: (i) the Magistrate Judge’s Proposed Findings and Recommended
Disposition, filed February 9, 2026 (Doc. 21) is adopted; (ii) Defendant New Mexico Judicial
Standards Commission’s Motion to Dismiss for Failure to State a Claim Upon Which Relief Can
Be Granted, filed July 2, 2025 (Doc. 4) is granted; (iii) Plaintiff’s Motion for Judicial Notice of
Official State Court Records and Absence of Jurisdictional Transcript, filed December 19, 2025
(Doc. 15) is granted to the limited extent the Court considers the State court record in ruling on
the motion to dismiss, but otherwise denied; (iv) Plaintiff’s Motion Confirming Preservation of
Jury Trial Right Following Transfer to Federal Jurisdiction, filed December 19, 2025 (Doc. 12),
Plaintiff’s Motion for Evidentiary Hearing on Jurisdictional Record, filed December 19, 2025
(Doc. 13), and Plaintiff’s Motion to Stay and Enjoin State Proceedings and Enforcement Pending
Jurisdictional Determination, filed December 19, 2025 (Doc. 14) are all denied as moot; (v) this
case is dismissed with prejudice; and (vi) the Court will enter a separate Judgment disposing of
this case.
__________________________________
UNITED STATES DISTRICT JUDGE
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Counsel and Parties:
Brandon Kuykendall
Roswell, New Mexico
Plaintiff pro se
Alfred Park
Amy Headrick
Park & Associates, LLC
Albuquerque, New Mexico
Attorneys for the Defendant
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