UNITED STATES COURT OF APPEALS
Filed 11/4/96
TENTH CIRCUIT
MONTGOMERY CARL AKERS,
Plaintiff-Appellant,
v.
SHARON SANDOVAL; DEIRDRE
No. 95-1306
ELLEN WOOD; MICHAEL
(D.C. No. 94-B-2445)
MARTINEZ; FRED BACH; ROBERT
(D. Colo.)
JACOBS; RICHARD MICKLICK;
DOYLE THOMAS; HERMAN KELT;
VICKI EMLAW; VICKI ESPARZA;
ROBERT ESPARZA; THOMAS
REED; KATHRYN DELGADO,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and HENRY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
The pro se Appellant, Mr. Akers, commenced an action alleging
Defendants, who include both public employees and private citizens, were
engaged in a racketeering enterprise designed to deprive him of his constitutional
rights in violation of the Racketeer Influenced and Corrupt Organizations Act. 18
U.S.C. §§ 1961 - 1968 (1994). Mr. Akers additionally alleged Defendants
violated his constitutional rights under Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971), and 42 U.S.C. § 1983 (1994). Mr. Akers also alleged the
Defendants committed the state torts of false arrest and failure to supervise. One
Defendant filed a motion for summary judgment, while the remaining Defendants
filed motions to dismiss.
Mr. Akers then filed a motion to amend his original complaint, which the
district court granted. Mr. Akers subsequently filed a motion for extention of
time to file the complaint. The district court granted the motion, but Mr. Akers
failed to meet the extended deadline. Mr. Akers filed a second and then a third
motion for extention of time. A magistrate judge denied the second motion; the
district court denied the third.
-2-
The case was referred to a magistrate judge for recommendation on the
pending motions to dismiss and the motion for summary judgment. The
magistrate judge recommended the district court grant all pending motions to
dismiss, and the motion for summary judgment. The magistrate judge also
recommended Mr. Akers be enjoined from filing future actions in the United
States District Court for the District of Colorado without representation or
permission. The district court, upon de novo review of the magistrate judge's
recommendations, granted the Defendants' motions to dismiss and the motion for
summary judgment. The district court also enjoined Mr. Akers from filing future
actions absent representation or leave of the court to proceed pro se. Mr. Akers
appealed, and we affirm.
Mr. Akers first argues the district court failed to review the magistrate
judge's recommendations de novo. We disagree. Mr. Akers challenged the
magistrate judge's recommendations. Upon a party's submission of a timely
objection to a magistrate judge's recommendation, district court judges must
conduct a de novo review of the record. 28 U.S.C. § 636(b)(1) (1994); In re
Griego, 64 F.3d 580, 584 (10th Cir. 1995); Bratcher v. Bray-Doyle Indep. Sch.
Dist. No. 42, 8 F.3d 722, 724 (10th Cir. 1993). While the district court's duty is
satisfied only by considering the record itself, and not by merely reviewing the
-3-
magistrate judge's report, we presume the district court knows what is required.
Id. An express statement by the district court that it conducted a de novo review
of the record will not be disturbed absent "some clear indication otherwise."
Bratcher, 8 F.3d at 724. Such a statement is commonly used where the district
court feels the magistrate judge has dealt with the issues fully and accurately and
feels it could add little of value to that analysis. In re Griego, 64 F.3d at 584.
Here, the district court expressly stated that before adopting the magistrate
judge's recommendations, it had conducted a de novo review of the record. Mr.
Akers attempts to argue that the merits of his claim and the court's brief treatment
of the case show the district court failed to properly review the record. We find
these arguments unpersuasive. Mr. Akers has failed to establish any indication
the district court did not review the record as required, and brevity alone does not
warrant "'look[ing] behind a district court's express statement that it engaged in a
de novo review of the record.'" Bratcher, 8 F.3d at 724 (quoting Andrews v.
Deland, 943 F.2d 1162, 1171 (10th Cir. 1991), cert. denied, 502 U.S. 1110
(1992)). As Mr. Akers offers no other support for his contention the district court
failed to conduct a de novo review, we reject it. We hold the district court
properly conducted a de novo review of the magistrate judge's recommendations.
-4-
Mr. Akers next argues the district court erred in denying his second and
third motions for extention of time to file an amended complaint. We disagree.
We review the denial of a request for extension of time made pursuant to the Fed.
R. Civ. P. 6(b)(1) under an abuse of discretion standard. Buchanan v. Sherrill, 51
F.3d 227, 228 (10th Cir. 1995). In supervising the court, a judge is constantly
making case-management oriented decisions which are, of necessity,
discretionary. In recognition of trial courts' superior position to make these
decisions, we afford trial courts a correspondingly deferential level of appellate
review under the abuse of discretion standard. The test we apply is not how we
would have decided the issue had it been before us, but rather, was the trial
court's decision within a broad zone of permissibility?
The district court granted Mr. Akers' first motion for extention of time, and
Mr. Akers failed to file an amended complaint. When making his additional
motions, Mr. Akers claimed additional time was necessary to gather information
and claimed his incarceration restricted his access to counsel. Mr. Akers had
nearly eight months from the filing of his original complaint to the deadline for
his amended complaint to conduct an investigation and to secure counsel. The
district court concluded Mr. Akers' asserted reasons for delay were insufficient to
show good cause warranting further time extension for Mr. Akers to amend his
-5-
complaint. Upon careful review of the record, we find no indication the district
court abused its discretion in denying Mr. Akers' additional motions for extention
of time.
Mr. Akers next argues the district court erred in enjoining him from filing
future actions in the United States District Court for the District of Colorado
without counsel or leave of the court. We disagree. The district court has power
to enjoin litigants who abuse the court system by harassing their opponents. 28
U.S.C. § 1651(a) (1994); Werner v. Utah, 32 F.3d 1446, 1447 (10th Cir. 1994);
Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989). The district court
properly exercised this power. Mr. Akers argues the injunction is improper
because the district court made no findings he was abusive, and because he is
merely litigious, not abusive. We are not persuaded by these arguments. The
magistrate judge made findings and documented Mr. Akers' abusive history, and
the district court adopted the magistrate judge's findings. Consequently, we find
the district court properly exercised its discretion in enjoining Mr. Akers from
filing future actions.
Mr. Akers next argues the district court erred in granting the Defendants'
motions to dismiss and motion for summary judgment with regard to his
-6-
Racketeer Influenced and Corrupt Organizations Act claims, his Bivens claims,
and his§ 1983 claims. We review these motions de novo, and affirm the district
court.
In his recommendations, the magistrate judge dealt with the merits of each
motion to dismiss and the motion for summary judgment. Due to the thorough
nature of these recommendations, upon careful review of the record, we adopt
these findings and affirm the district court for substantially the same reasons.
Mr. Akers argues the motions as to the individual federal defendants should
not have been granted because those defendants are not entitled to qualified
immunity. Mr. Akers argues the individual federal defendants are not entitled to
qualified immunity because they have violated clearly established laws. We
remain unpersuaded by this argument. The claims upon which Mr. Akers relies
are meritless, such that the Defendants need not rely on their qualified immunity.
Nevertheless, the federal Defendants are entitled to such immunity. Government
officials performing discretionary functions under color of law are entitled to
qualified immunity so long as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person should have
known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Woodward v. City of
-7-
Worland, 977 F.2d 1392, 1396 (10th Cir. 1992), cert. denied, 509 U.S. 923
(1993). Although Mr. Akers may assert claims falling under clearly established
law, he has failed toprovide facts or allegations sufficient to show the federal
Defendants violated clearly established law. See id. As a result, Mr. Akers'
claims must fail.
Mr. Akers also argues he has sufficiently stated a claim under the Racketeer
Influenced and Corrupt Organizations Act, Bivens and § 1983. We agree with the
magistrate judge that Mr. Akers has failed to allege sufficient facts to support his
claims. We also agree with the magistrate judge that Mr. Akers' state tort claims
lack merit.
Mr. Akers further argues the district court erred in substituting the United
States for the federal defendants in the state tort claims. This argument is
meritless. Pursuant to 28 U.S.C. § 2679(d)(1) (1994), the United States Attorney
General through the United States Attorney for the District of Colorado certified
that at the time of the incidents alleged, the federal defendants were acting within
the scope of their federal employment. In the Tenth Circuit, once the attorney
general decides under subsection (d)(1) to certify an action, the substitution of the
United States as a defendant does not admit discretion. Aviles v. Lutz, 887 F.2d
-8-
1046, 1049 (10th Cir. 1989). The attorney general need not provide more than the
certificate. 28 U.S.C. § 2679(d)(1) & (2).
Mr. Akers also argues the district court erred in dismissing claims against
the Defendants because they failed to comply with Fed. R. Civ. P. 55(a). Mr.
Akers argues the Defendants failed to "otherwise defend" their actions such that a
default judgment should be entered against them. This argument is wholly
without merit. A motion to dismiss constitutes defending an action within the
meaning of Fed. R. Civ. P. 55(a).
Additionally, Mr. Akers argues the district court erred for the following
reasons: the district court erred in dismissing Mr. Akers claims against Judge
Thomas Reed because Judge Reed is not entitled to immunity; the district court
erred in denying his motion for sanctions under Fed. R. Civ. P. 11(b); the district
court erred in accepting false information from counsel; the district court erred
because it was not objective. Upon careful review of the record, we reject these
arguments as meritless and affirm the recommendations of the magistrate judge
and the district court's orders for substantially the same reasons.
Accordingly, the judgment of the United States District Court for the
-9-
District of Colorado dismissing all claims is AFFIRMED.
Entered for the Court
WADE BRORBY
United States Circuit Judge
-10-
Akers v. Sandoval
Combined Opinion