Holmes v. Grant Cnty. Sheriff Dep't
Holmes v. Grant Cnty. Sheriff Dep't
Opinion of the Court
*819THIS MATTER comes before the Court on: (i) the Magistrate Judge's Proposed Findings and Recommended Disposition, filed July 31, 2018 (Doc. 29)("PFRD"), recommending that the Court grant the Defendants' Motion to Dismiss Plaintiff's Complaint, Plaintiff's Pursuant to Rule 15; Amended and Plaintiff's Addendum to Supplemental Pleadings, with Prejudice, filed March 26, 2018 (Doc. 16)("MTD"); and (ii) the Plaintiff's Motion to Dismiss Arrived on August 3, 2018; Responded to on August 15 Within the 14 Days as Demanded, filed August 16, 2018 (Doc. 30)("Objections"), objecting to the PFRD. Having reviewed all relevant materials and applicable law, the Court overrules Plaintiff Denise-Bradford: Holmes' Objections and adopts the Honorable Gregory B. Wormuth's, United States Magistrate Judge for the District of New Mexico, PFRD, thereby granting the Defendants' MTD.
PROCEDURAL BACKGROUND
On February 26, 2018, Holmes filed her Civil Complaint, filed February 26, 2018 (Doc. 1)("Complaint"), which she supplemented on March 14, 2018, and amended on March 20, 2018. See Pursuant to Rule 15; Amended/Supplemental Pleading, filed March 14, 2018 (Doc. 11)("Supp. Complaint"); Pursuant to Rule 15; Amended, filed March 20, 2018 (Doc. 14). Holmes contends that the Grant County Sheriff and a Grant County Sheriff Deputy violated New Mexico criminal statutes and her "Natural Rights" and "Common Law Rights" when they cited and arrested Holmes, and towed her automobile, allegedly in response to discovering Holmes driving her vehicle without a driver's license, automobile registration, or car insurance. Defense Answer Received on April 3, 2018 Response to Defense Counsel at 7:21-23, filed April 6, 2018 (Doc. 17)("Response"). See Complaint at 5:23-7:11; Supp. Complaint at 3:25-4:3. Holmes also alleges that she is a foreign entity, because her "property and land are on a foreign domicile, within New Mexico, but outside New Mexico and the Federal Zone." Complaint at 2:27-3:1. See id. at 5:9-16. Particularly, Holmes alleges that she is a diplomat of the foreign state Bradford Republic, is immune from the enforcement of New Mexico laws pursuant to the Foreign States Immunities Act,
On March 26, 2018, the Defendants filed the MTD, arguing that the Court should dismiss the case because Holmes' Complaint fails to state a claim upon which relief can be granted, and because the Defendants are immune from suit. See MTD at 2-6. The MTD was fully briefed on April 24, 2018. See Defendants' Notice of Completion of Briefing, filed April 25, 2018 (Doc. 20). On July 13, 2018, the Court referred the MTD to Magistrate Judge Wormuth for recommended findings and final disposition. See Order of Reference Relating to Non-Prisoner Pro Se Cases at 1, filed July 13, 2018 (Doc. 28). On July 31, 2018, Magistrate Judge Wormuth submitted his PFRD recommending that the Court dismiss Holmes' Complaint for failure to state a claim. See PFRD at 1. Specifically, Magistrate Judge Wormuth concluded that, even construing Holmes' claims liberally, none of the statutes on which Holmes expressly or impliedly relies *820for her claims affords a private right of action.
Holmes filed objections to the PFRD on August 16, 2018, arguing that the Court should not dismiss her Complaint on a number of grounds, including, among other things, that she has the fundamental right to travel, that the Defendants waived the right to assert immunity by filing a MTD rather than an Answer in response to her Complaint, that she is properly seeking civil damages for the Defendants' alleged violations of criminal laws, and that the Defendants -- and police officers generally -- lack jurisdiction over Holmes. See Objections at 5:8-8:6, 8:23-27. Further, Holmes argues that Magistrate Judge Wormuth's conclusion is at odds with the Labor Management Relations Act of 1947,
STANDARD OF REVIEW
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 dispositive of a claim or defense...."). 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,
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.
"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. 2121 E. 30th St.,
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. 2121 E. 30th St.,
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." United States v. 2121 E. 30th St.,
Where a party files timely and specific objections to the Magistrate Judge's proposed findings and recommendation on "dispositive motions, the statute calls for a de novo determination, not a de novo hearing." United States v. Raddatz,
The Tenth Circuit requires a "district court to consider relevant evidence of record and not merely review the magistrate judge's recommendation" when conducting a de novo review of a party's timely, specific objections to the magistrate's report. Griego v. Padilla (In re Griego),
A "district court must clearly indicate that it is conducting a de novo determination" when a party objects to the magistrate's report "based upon conflicting evidence or testimony." Gee v. Estes,
It is common practice among district judges in this circuit to make such a statement and adopt the magistrate judges' recommended dispositions when they find that magistrate judges have dealt with the issues fully and accurately and that they could add little of value to that analysis. We cannot interpret the district court's statement as establishing that it failed to perform the required de novo review.
Griego v. Padilla (In re Griego),
Notably, because "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," United States v. Raddatz,
Under rule 12(b)(6) of the Federal Rules of Civil Procedure, a court will dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Specifically, a complaint must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal,
Where, as here, a party is proceeding pro se, the court is to liberally construe her pleadings. See Casanova v. Ulibarri,
ANALYSIS
Having reviewed the Magistrate Judge's PFRD and Holmes' Objections thereto, the Court concludes that Holmes has not raised any Objection that refutes Magistrate Judge Wormuth's determination that Holmes' Complaint does not state a claim upon which relief can be granted. Construing Holmes' Objections liberally, the Court concludes that Holmes' primary Objection is that she has standing to seek civil damages for criminal violations and to sue directly pursuant to FSIA. As an initial matter, the Court notes that Holmes does not object to the portion of the PFRD in which Magistrate Judge Wormuth outlined the three potential statutory underpinnings of Holmes' claims. See generally Objections. The Court, therefore, now addresses de novo these three potential bases for the claims that Holmes brings, as Magistrate Judge Wormuth determines them: (i) enforcement of a constitutional right pursuant to
Holmes' Complaint cannot be saved from dismissal on the first base, because, as Magistrate Judge Wormuth noted in his PFRD, Holmes underscores that she is not pursuing claims under
Second, the Court agrees that Holmes' efforts to sue the Defendants under numerous New Mexico criminal statutes are not sound, because -- as Magistrate Judge Wormuth properly concluded in his PFRD -- unless a criminal statute provides a private right of action, Holmes has no authority to enforce it as a non-prosecutor. See Complaint at 3:27-4:17; Andrews v. Heaton,
Holmes objects to Magistrate Judge Wormuth's PFRD on this point, because she asserts that "bar attorneys" are able to bring suits for harassment, unlawful taking of a motor vehicle, and conspiracy. Objections at 4:21-5:6. None of the criminal statutes that Holmes cites, however, affords a private right of action. See N.M.S.A. § 30-28-2 (conspiracy); N.M.S.A. § 30-16D-1 (unlawful taking of a vehicle or motor vehicle); N.M.S.A. § 30-4-3 (false imprisonment); and N.M.S.A. § 30-3A-2 (harassment). These criminal statutes, therefore, cannot properly serve as the basis for any civil lawsuit, whether a licensed attorney or a pro se plaintiff filed this case. Holmes has pointed to no authority to suggest that an attorney could file a civil suit on a client's behalf pursuant to a New Mexico criminal statute that does not provide for a private right of action. State tort law certainly may provide a valid basis for a cognizable civil claim stemming from conduct that the state also criminalizes, but Holmes has not brought tort claims against the Defendants; rather, as she reiterates in her Objections, "Plaintiff is asking for civil penalties for violating criminal acts." Objections at 5:7. Yet, as Magistrate Judge Wormuth properly concluded, private citizens lack standing to maintain criminal actions even if licensed attorneys represent them. See Andrews v. Heaton,
Next, the Court agrees with Magistrate Judge Wormuth's conclusion that Holmes does not state a claim pursuant to the FSIA in her capacity as an alleged diplomat of the foreign state of the Bradford Republic. See, e.g., Complaint at 2:23-26; Federal Question Pursuant to Treaties the United States is Party To at 2:6-16, *825filed April 25, 2018 (Doc. 21); Response to Defendants Reply (Received on April 27, 2018) at 8:26-9:1, filed May 2, 2018 (Doc. 22). Holmes offers no express argument regarding this conclusion in her Objections. See generally Objections. Nonetheless, construing Holmes' pleadings liberally, the Court affirms Magistrate Judge Wormuth's conclusion that the FSIA confers only immunity. Like the New Mexico criminal statutes, it does not provide any private right of action. Therefore, even if the Court accepts Holmes' argument that she falls within the ambit of the FSIA's definition of "foreign state," such that she qualifies for FSIA immunity, the statute would still not permit her to sue in federal court. At best, it would serve as a defense in the criminal cases that the state prosecutes against her in state court. The FSIA, therefore, does not confer on Holmes a private right of action, and the Court overrules any Objection to the contrary.
Finally, Holmes objects to the PFRD on various other grounds, including: (i) Holmes does not consent to the Magistrate Judge; (ii) the Defendants waived their right to move to dismiss Holmes' Complaint, because they "never pleaded that Plaintiff was not illegally arrested without a warrant, or that Plaintiff's auto was not stolen," Objections at 3:24-25; (iii) Holmes has the fundamental right to travel unencumbered by vehicle licensing and registration requirements; and (iv) the Defendants are not immune from suit and are incompetent. As to the first of these Objections, rule 72(b)(1) of the Federal Rules of Civil Procedure requires a Magistrate Judge, upon the Court's order of reference, to enter proposed findings of fact and a recommended disposition on dispositive pretrial matters "without the parties' consent." Of course, such a recommended disposition is subject to the Court's de novo review and ultimate determination, and the Court must review any Objections that the parties file. See Fed. R. Civ. P. 72(b)(2). This Memorandum Opinion and Order Granting Motion to Dismiss constitutes the de novo review to which Holmes is entitled, and thus her Objection that she does not consent to Magistrate Judge Wormuth pursuant to rule 73(a) of the Federal Rules of Civil Procedure and
As to the second of these Objections, the Federal Rules of Civil Procedure require the Defendants to assert a 12(b)(6) defense of failure to state a claim upon which relief can be granted by motion "before pleading if a responsive pleading is allowed." Fed. R. Civ. P. 12(b). The Defendants, therefore, properly comply with federal procedure by filing the MTD in lieu of an Answer to the Complaint, and Holmes' Objection that this decision should be taken as an admission of all the Complaint's allegations lacks a sound basis in the law, and the Court hereby overrules Holmes' second Objection.
As to the third Objection, again, Holmes does not overcome the fundamental barrier to her claims, which is that she has not pointed to any statute or constitutional provision that provides a private right of action to vindicate any "right to travel" unencumbered by vehicle licensing and registration requirements. Moreover, Holmes does not raise either of these arguments in her Response to the Defendants' MTD, meaning that Holmes has waived both of these arguments and may not raise them for the first time in her Objections, even if they had merit. See United States v. Garfinkle,
Finally, with regard to Holmes' Objection that the Defendants are *826not immune from suit, the Court need not decide that issue to rule on the MTD. Holmes must first state a claim upon which relief may be granted before the Court must decide whether the Defendants are immune to such a claim. For the reasons already explained in this Memorandum Opinion and Order Granting Motion to Dismiss, Holmes has not stated any claim upon which relief may be granted. Thus, her Complaint is subject to dismissal pursuant to rule 12(b)(6) notwithstanding the proper resolution of the Defendants' asserted affirmative defense of immunity. Nevertheless, the Court will briefly address this Objection, because, "[a]lthough pro se plaintiffs are usually allowed to amend their complaints, dismissal with prejudice for failure to state a claim is proper 'where it is obvious that the plaintiff cannot prevail on the facts [she] has alleged and it would be futile to give [her] an opportunity to amend.' " Avington v. Indian Health Care Res. Ctr. of Tulsa,
In sum, the Court agrees that none of the three possible statutory bases for Holmes' claims --
IT IS ORDERED that: (i) the Magistrate Judge's Proposed Findings and Recommended Disposition, filed July 31, 2018 (Doc. 29), are adopted; (ii) the Plaintiff's objections to the PFRD in her Motion to Dismiss Arrived on August 3, 2018; Responded to on August 15 Within the 14 *827Days as Demanded, filed August 16, 2018 (Doc. 30), are overruled; (iii) the Defendants' Motion to Dismiss Plaintiff's Complaint, Plaintiff's Pursuant to Rule 15; Amended and Plaintiff's Addendum to Supplemental Pleadings, with Prejudice, filed March 26, 2018 (Doc. 16), is granted; and (iv) the Plaintiff's Civil Complaint, filed February 26, 2018 (Doc. 1), is dismissed with prejudice.
Pevehouse v. Scibana is an unpublished Tenth Circuit opinion, but the Court can rely on an unpublished Tenth Circuit opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A), 28 U.S.C. ("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 ... citation to unpublished opinions is not favored. However, if an unpublished opinion ... 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,
Reference
- Full Case Name
- Denise-Bradford: HOLMES v. GRANT COUNTY SHERIFF DEPARTMENT, and Others in Discovery
- Cited By
- 4 cases
- Status
- Published