“[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.”
How later courts described this case
- “[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.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
LUIS ANTONIO MALDONADO )
CASTILLO, )
)
Plaintiff, )
)
v. ) Case No. CIV-23-675-D
)
DAVID PRATER, et al., )
)
Defendants. )
ORDER
Plaintiff brought this civil rights action under 42 U.S.C. § 1983, alleging violations
of his constitutional rights [Doc. No. 1]. Plaintiff named as Defendants various city
officials, detention officers, and OKCPD officers; an Oklahoma County district court
judge; a nurse; the “Board of Trustees”1; Turn Key Health Clinics, LLC; Palomar; CJ’s
Bail Bonds; and Plaintiff’s ex-wife, Sarah Stewart. The matter was referred to United States
Magistrate Judge Amanda Maxfield Green for initial proceedings in accordance with 28
U.S.C. § 636(b)(1)(B) and (C).
On December 8, 2023, the magistrate judge issued a Report and Recommendation
[Doc. No. 68], in which she recommended the following motions be granted: Defendant
Sarah Stewart’s Motion to Dismiss [Doc. No. 6]; Defendant Wade Gourley’s Motion to
Dismiss [Doc. No. 22]; Defendant Michael Callaway’s Motion to Dismiss [Doc. No. 24];
Defendant Judge Sara Bondurant’s Motion to Dismiss [Doc. No. 26]; Defendant Palomar’s
1 From the context of Plaintiff’s complaint, it appears Plaintiff intended to name the
Oklahoma County Criminal Justice Authority (OCCJA).
Motion to Dismiss [Doc. No. 37]; Defendant OCCJA’s Motion to Dismiss [Doc. No. 39];
Defendant Turn Key’s Motion to Dismiss [Doc. No. 41]; Defendant CJ’s Bail Bonds’
Motion for Summary Judgment [Doc. No. 16]; and Plaintiff’s Motions to Dismiss
Defendant Prater and Defendant Jacquez [Doc. Nos. 43, 53]. The magistrate judge further
recommended dismissing without prejudice Plaintiff’s claims against Defendants Toledo,
Easter, and Powers, and denying the following motions: Defendant Stewart’s Motion for
Sanctions [Doc. No. 32]; Defendant Callaway’s Motion to Strike Response [Doc. No. 54];
Plaintiff’s Motions to Change Non-Prisoner 1983 Form to Prisoner 1983 Form [Doc. Nos.
44, 52, 60]; and Plaintiff’s Motion for Default Judgment Against Detention Officer Toledo
[Doc. No. 47]. In her report, the magistrate judge notified the parties that failure to object
on or before December 29, 2023, would waive the right to appellate review of both factual
and legal issues contained in the report. See Moore v. United States, 950 F.2d 656, 659
(10th Cir. 1991).
Plaintiff timely filed an Objection to Report and Recommendation [Doc. No. 69].
In it, he rehashes many of his arguments from his responses to Defendants’ motions to
dismiss but fails to make specific objections to most of the magistrate judge’s thorough
conclusions. At one point, Plaintiff vaguely argues that the magistrate judge “ignored
information when it was [useful] to dismiss [his] complaint against peers but use[d] that
same ‘ignored information’ to dismiss [his] complaint with defendants not closely related
to [Defendant] Judge Bondurant.” [Doc. No. 69, at 2]. Without citing to any specific
information which Plaintiff contends the magistrate judge ignored, this type of blanket
objection without argument or authorities, is not sufficient to preserve an issue for further
review. See United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (“[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.”).
Where Plaintiff’s objections are more specific, he presents no persuasive argument
or authority that would cause this Court to reject the magistrate judge’s conclusions. To
the extent Plaintiff attempts to introduce new arguments in his objection, the Court notes
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).
Plaintiff first argues that the magistrate judge was inconsistent in applying the legal
standard for a motion to dismiss a pro se complaint. In her report, the magistrate judge
correctly stated that “[t]he court’s function on a Rule 12(b)(6) motion is not to weigh
potential evidence that the parties might present at trial, but to assess whether the plaintiff’s
complaint alone is legally sufficient to state a claim for which relief may be granted.” [Doc.
No. 68, at 7]. Thus, the magistrate judge properly “ignored any new factual assertions
Plaintiff include[d] in his own motions and his responses to the Defendants’ motions.” Id.
Citing this language, Plaintiff argues that it was inconsistent for the magistrate judge
to subsequently refer to Plaintiff’s response to OCCJA’s motion to dismiss. The Court
disagrees. The magistrate judge referred to Plaintiff’s response to OCCJA’s motion to
dismiss to analyze whether Plaintiff had shown good cause for the failure to effect proper
and timely service, not whether Plaintiff’s complaint stated a claim upon which relief could
be granted. Plaintiff further argues that the magistrate judge failed to “take into account
[his] response to each motion.” However, the report clearly reflects that the magistrate
judge considered Plaintiff’s arguments in response to Defendants’ motions to dismiss and
ignored only new factual assertions that were not included in Plaintiff’s complaint.
Accordingly, the Court finds no inconsistencies between the magistrate judge’s report and
the legal standard governing motions to dismiss.
Plaintiff also argues that the magistrate judge failed to “liberally construe” his
complaint. Plaintiff ignores, however, that courts are not to serve as a pro se plaintiff’s
advocate and are not bound to create arguments for a plaintiff merely because he is pro se.
See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008); see also Wingfield v. Pruitt,
825 F. App’x 553, 557 (10th Cir. 2020) (citations omitted) (“[T]his liberal-construction
principle ‘does not excuse’ a litigant’s obligation ‘to comply with the fundamental
requirements of the Federal Rules of Civil and Appellate Procedure.’ Nor does it obligate
the courts ‘to assume the role of the advocate for the pro se litigant.’”). The Court finds
that the magistrate judge applied the correct legal standard and liberally construed
Plaintiff’s allegations in preparing her report.
The Court has reviewed the entirety of the Report and Recommendation, as well as
the case record, and fully concurs in the Report and Recommendation. Therefore, the
Court, having conducted a de novo review, finds that Plaintiff’s objection should be
overruled, and hereby ADOPTS the Report and Recommendation [Doc. No. 68] in its
entirety.
IT IS THEREFORE ORDERED that:
i. Defendant Stewart’s Motion to Dismiss [Doc. No. 6] is GRANTED;
ii. Defendant Gourley’s Motion to Dismiss [Doc. No. 22] is GRANTED;
iii. Defendant Callaway’s Motion to Dismiss [Doc. No. 24] is GRANTED;
iv. Defendant Bondurant’s Motion to Dismiss [Doc. No. 26] is GRANTED;
v. Defendant Palomar’s Motion to Dismiss [Doc. No. 37] is GRANTED;
vi. Defendant OCCJA’s Motion to Dismiss [Doc. No. 39] is GRANTED;
vii. Defendant Turn Key’s Motion to Dismiss [Doc. No. 41] is GRANTED;
viii. Defendant CJ’s Bail Bonds’ Motion for Summary Judgment [Doc. No. 16] is
GRANTED;
ix. Plaintiff’s Motions to Dismiss Defendant Prater and Defendant Jacquez [Doc.
Nos. 43, 53] are GRANTED;
x. Plaintiff’s claims against Defendant Toledo are DISMISSED without prejudice;
xi. Plaintiff’s claims against Defendant Easter are DISMISSED without prejudice;
xii. Plaintiff’s claims against Defendant Powers are DISMISSED without prejudice;
xiii. Defendant Stewart’s Motion for Sanctions [Doc. No. 32] is DENIED;
xiv. Defendant Callaway’s Motion to Strike Response [Doc. No. 54] is DENIED;
xv. Plaintiff’s Motions to Change Non-Prisoner 1983 Form to Prisoner 1983 Form
[Doc. Nos. 44, 52, 60] are DENIED; and
xvi. Plaintiff’s Motion for Default Judgment Against Detention Officer Toledo [Doc.
No. 47] is DENIED.
Based on these rulings, Plaintiff's Complaint [Doc. No. 1] 1s DISMISSED without
prejudice. A separate judgment shall be entered.
IT IS SO ORDERED this 2" day of January, 2024.
Nd Q.
TIMOTHY D. DeGIUSTI
Chief United States District Judge