Scott v. Dona Ana County Commissioners

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 4, 2013
Elisabeth A. Shumaker
Clerk of Court
DARON SCOTT; DURYEA SCOTT,
Plaintiffs-Appellants,
v. No. 12-2063
(D.C. Nos. 2:09-CV-00797-JB-GBW &
OFFICER FNU RUBIO, Individually, 2:09-CV-00799-JB-GBW)
and in his Official Capacity; FNU (D. N.M.)
HERDIA, Officer, Individually, and in
the capacity of Daso Officer, S573;
JOE JACQUES, Individually, and in his
Capacity as Daso Officer, S566;
HEATHER FERGUSON, Individually
and in her Official Capacity as an
employee of the Animal Protection of
New Mexico, Inc.; DOÑA ANA
COUNTY, a local public body of the
State of New Mexico; OFFICER ROBYN
GOJKOVICH, Individually and in her
Official Capacity; OFFICER LINDA
MALDONADO, Individually and in her
Official Capacity; OFFICER MARY
LOU WARD, Individually and in her
Official Capacity; OFFICER PAUL
RICHARDSON, Individually and in his
Official Capacity; OFFICER CURTIS
CHILDRESS, Individually and in his
Official Capacity; OFFICER TRAVIS
WELLS, Individually and in his Official
Capacity, a/k/a Travis Wells; OFFICER
FNU PALMER, Individually and in his
Official Capacity; OFFICER MANNY
HERNANDEZ, Individually and in his
Official Capacity,
Defendants-Appellees,
and
DOÑA ANA COUNTY HUMANE
SOCIETY; ALLEN DAVIS,
Individually, and in his Capacity as
Director of Doña Ana County Humane
Society; DEANISE MARTA,
Individually, and in her Capacity as
Director of Doña Ana County Humane
Society; RUSSELL WARD, Individually,
and in his Capacity as Veterinary
Technician; GLORIA RAMOS, a/k/a
Gloria Mendez; GERALDO PEREZ;
UNKNOWN EL PASO POLICE
OFFICERS; UNKNOWN EL PASO
ANIMAL CONTROL OFFICERS;
UNKNOWN ANIMAL CONTROL
OFFICERS; ANIMAL PROTECTION
OF NEW MEXICO, INC.; ANIMAL
CRUELTY TASK FORCE OF
NEW MEXICO; CITY OF LAS
CRUCES; OFFICER DARREN WHITE;
JOHN AND JANE DOES 1 THROUGH
13; UNKNOWN OFFICERS AND CITY,
COUNTY AND STATE EMPLOYEES;
DOÑA ANA COUNTY
COMMISSIONERS; DOÑA ANA
COUNTY SHERIFF’S OFFICE; GARY
KING; SUSAN RIEDEL, Individually,
and in her Capacity as Assistant District
Attorney; AMY ORLANDO,
Individually, and in her Capacity as
Assistant District Attorney; SUSANA
MARTINEZ, Individually, and in her
Capacity as District Attorney; CHUCK
FRANCO, Undersheriff, Individually,
and in his Capacity as Undersheriff;
TODD GARRISON, Individually, and in
his Capacity as Sheriff; MICHELLE
UGALDE, Individually, and in her
Capacity as Dano Animal Control
Officer, S922; STEVE SCHMIDT,
El Paso Police Department Detective,
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Individually and in his Capacity as El
Paso Police Officer; RICHARD SILVA,
Magistrate Judge, Individually, and in his
Capacity as Doña Ana County Magistrate
Judge; OLIVIA NEVAREZ-GARCIA,
Magistrate Judge, Individually, and in her
Capacity as Doña Ana County Magistrate
Judge; OSEPH GUILLORY, Magistrate
Judge, Individually and in his Capacity as
Doña Ana County Magistrate Judge,
Defendants.
ORDER AND JUDGMENT*
Before ANDERSON and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit
Judge.
Brothers Daron and Duryea Scott appeal from a district court order that
(1) denied their motion for relief from judgment under Fed. R. Civ. P. 60(b), and
(2) granted the defendants’ motion for attorney fees. We dismiss in part and affirm
in part.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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BACKGROUND
The Scotts owned sixty-eight pit-bull terriers, which they kept on four
properties in New Mexico and Texas. In August 2007, based on suspicions of animal
cruelty and dog fighting, various defendants raided the properties and confiscated the
dogs. Criminal charges against the Scotts were apparently dismissed, however, after
the searches of the New Mexico properties were deemed unconstitutional.
In 2009, the Scotts filed separate pro se complaints against numerous
defendants in state court, claiming that the raids violated their constitutional rights.
The cases were removed to federal court, and the Scotts retained counsel.
Over the course of seven months, the Scotts “attempted to produce a[ ] [single]
amended complaint that complied with the rules of procedure.” Aplt. App. at 259.
“On his sixth attempt, [the Scotts’] counsel produced an amended complaint that did
not blatantly violate any civil rule . . . .” Id. at 259. That complaint advanced twenty
federal and state-law claims for relief against dozens of defendants, and was
promptly made the subject of a motion to dismiss. The Scotts filed a motion for
partial summary judgment, which a magistrate judge sua sponte stayed.
In a detailed report, the magistrate judge recommended that the Scotts’
complaint be dismissed because it failed to “‘make clear exactly who is alleged to
have done what to whom.’” Id. at 270 (quoting Robbins v. Oklahoma, 519 F.3d
1242, 1250 (10th Cir. 2008)). In a separate report, he recommended dismissing
unserved defendants. Two days before the deadline for objecting to the
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recommendation that the federal claims be dismissed, the Scotts filed a cursory
“Motion for Stay of Review,” seeking more time to object. Id. at 303.
The district judge declined to extend the time for objecting, noting that the
only reason the Scotts gave for an extension was their stayed partial
summary-judgment motion. He then accepted the magistrate judge’s
recommendations, but remanded the state-law claims to state court.
In March 2011, a final judgment was entered, but the Scotts did not appeal.
The defendants moved for attorney fees.
In August 2011, the Scotts filed a Rule 60(b)(6) motion to set aside the
judgment, arguing that the magistrate judge and district judge were biased and should
be recused. They also sought reconsideration before a different district judge. As
evidence of bias, they proffered affidavits referencing negative publicity in their case
and the judges’ adverse rulings, and they claimed that (1) the magistrate judge
worked in the Las Cruces District Attorney’s office at the same time the Scotts were
being prosecuted in another case, and (2) the district judge is acquainted with
defendant Darren White.
The magistrate judge recommended that the motion be denied. He indicated
that he had never worked in the Las Cruces District Attorney’s Office and that the
district judge had had only limited contacts with White since becoming a judge in
2003. The magistrate judge further recommended awarding attorney fees to the
defendants because the Scotts’ attorney had unreasonably multiplied the proceedings.
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The Scotts objected, but limited their recusal bases to (1) the magistrate
judge’s sua sponte stay of their motion for partial summary judgment, and (2) the
district judge’s refusal to extend the time to object to the recommendation that the
federal claims be dismissed. The Scotts also objected to the recommended attorney
fees, stating that the magistrate judge had insisted on “militant compliance to the
rules of civil procedure.” Id. at 458.
The district judge overruled the objections and adopted the recommendations
except to the extent that the magistrate judge had suggested awarding attorney fees
for the Scotts’ seeking recusal. The Scotts appealed.
DISCUSSION
I. Appellate Jurisdiction
Because the Scotts did not timely appeal from the final judgment, we lack
jurisdiction to consider any challenges to their complaint’s dismissal. See Bowles v.
Russell, 551 U.S. 205, 214 (2007) (“[T]he timely filing of a notice of appeal in a civil
case is a jurisdictional requirement.”); Fed. R. App. P. 4(a)(1)(A) (“[T]he notice of
appeal . . . must be filed with the district clerk within 30 days after entry of the
judgment or order appealed from.”). Although a Rule 60 motion can toll the time to
file an appeal, that motion must be “filed no later than 28 days after the judgment is
entered.” Fed. R. App. P. 4(a)(4)(A)(vi). Here, the Scott’s motion was not filed in
time to toll the appeal period. And although the defendants’ attorney-fee motion was
not resolved until the district court denied Rule 60(b)(6) relief, “an unresolved issue
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of attorney’s fees for the litigation in question does not prevent the judgment on the
merits from being final.” Scrivner v. Sonat Exploration Co., 242 F.3d 1288, 1290 n.1
(10th Cir. 2001) (quotation omitted).
Accordingly, we will dismiss this appeal for lack of jurisdiction insofar as the
Scotts contest the dismissal of their federal claims.
II. Rule 60(b)(6) Relief
Relief from judgment under Rule 60(b)(6) is appropriate only in
“extraordinary situations . . . when such action is appropriate to accomplish justice.”
Colo. Interstate Gas Co. v. Natural Gas Pipeline Co. of Am., 962 F.2d 1528, 1533
(10th Cir. 1992) (quotation omitted). We review the denial of a Rule 60(b)(6) motion
for abuse of discretion. Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d
1482, 1491 (10th Cir. 1994). Allegations of judicial bias may be raised in a Rule
60(b)(6) motion. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847,
863-64 (1988).
A judge must recuse himself “in any proceeding in which his impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a). This is an objective test,
based on a judge’s “outward manifestations and reasonable inferences drawn
therefrom,” rather than the judge’s actual state of mind. Nichols v. Alley, 71 F.3d
347, 351 (10th Cir. 1995). Additionally, a party may request recusal by filing an
affidavit with the court stating the reasons the judge is personally biased or
prejudiced. 28 U.S.C. § 144. The facts alleged in the § 144 affidavit must be
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accepted as true, but they are construed strictly against the moving party. See Glass
v. Pfeffer, 849 F.2d 1261, 1267 (10th Cir. 1988).
The Scotts argue that the magistrate judge demonstrated bias by staying their
partial summary-judgment motion. As for the district judge, they contend that he was
biased because he refused to extend the time to object to the magistrate judge’s
recommendations. But “adverse rulings cannot in themselves form the appropriate
grounds for disqualification.” Green v. Branson, 108 F.3d 1296, 1305 (10th Cir.
1997) (quotation omitted). Moreover, nothing in these rulings suggests bias. Indeed,
staying the Scotts’ motion was not surprising, given that it apparently targeted
unserved defendants and would have been mooted by a dismissal of the Scotts’
complaint. As for the refusal to extend the time for filing objections, the Scotts made
their request only two days before the deadline and offered no valid reason for an
extension.1
In addition, the Scotts did not timely seek recusal. Much of the conduct of
which they have complained throughout these proceedings occurred more than five
1
To the extent the Scotts attempt to derive bias from the magistrate judge’s
denial of a motion to file a sur-reply, they did not include this argument in their
objections to the order recommending that Rule 60(b) relief be denied. Nor did the
Scotts include in their objections the district judge’s friendship with defendant White.
These bases for alleged bias are therefore waived. See Cohen v. Longshore, 621 F.3d
1311, 1318 (10th Cir. 2010) (“[W]e “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.”
(quotations omitted)). As for the magistrate judge’s purported employment in the
Las Cruces District Attorney’s Office, the Scotts have recognized that they were
mistaken. Aplt. App. at 458.
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months before they sought recusal. “A motion to recuse must be filed promptly after
the allegedly disqualifying facts are discovered.” Hinman v. Rogers, 831 F.2d 937,
938 (10th Cir. 1987) (per curiam); see, e.g., Green, 108 F.3d at 1305 (holding that
recusal motion filed under §§ 144 and 455 was untimely where it was brought five
weeks after magistrate judge’s recommendation). The Scotts’ only explanation for
their delay appears to be that they were waiting to determine if they would prevail on
their motion for an extension of time to object to the magistrate judge’s
recommendations. See Opening Aplt. Br. at 17 (“Appellants wanted to determine
which way th[e] Honorable Court was leaning before claiming an appearance of bias,
when Appellants filed their Motion for Stay of Review and Deadlines on Report and
Recommendation.”). We reiterate, however, that adverse rulings are not sufficient
grounds for disqualifying a judge. Green, 108 F.3d at 1305; cf. United States v.
Pearson, 203 F.3d 1243, 1276 (10th Cir. 2000) (“A promptly filed motion conserves
judicial resources and alleviates the concern that it is motivated by adverse rulings or
an attempt to manipulate the judicial process.”).
Next, the Scotts assert a due-process theory in support of recusal. See, e.g.,
Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876 (2009) (stating that due
process requires that “a judge must recuse himself when he has a direct, personal,
substantial, pecuniary interest in a case” (quotation omitted)). But they do not
discuss how such a theory applies here, and they did not raise the theory below.
Therefore, we do not consider it. See ClearOne Commc’ns, Inc. v. Biamp Sys.,
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653 F.3d 1163, 1182 (10th Cir. 2011) (“This court will generally not consider an
argument that was not raised in the district court.”); Bronson v. Swensen, 500 F.3d
1099, 1104-05 (10th Cir. 2007) (observing that this court does not consider
arguments that are inadequately briefed).
We conclude that the district court correctly found no basis for recusal, and
therefore, acted within its discretion by denying Rule 60(b)(6) relief.
III. Attorney Fees
The Scotts argue that “[b]ecause of the bias and violation of [their] due
process right to a fair proceeding and fair tribunal, the order assessing attorneys’ fees
should also be vacated.” Aplt. Opening Br. at 28. This argument necessarily fails,
however, in light of our conclusion above as to the absence of any ground for
disqualifying either the magistrate judge or the district judge.
CONCLUSION
We dismiss this appeal to the extent the Scotts challenge the district court’s
dismissal order, and we affirm the district court’s order denying Rule 60(b)(6) relief
and granting attorney fees.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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