* This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

OCT 10 2000

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

H. ANTHONY CHAVEZ; UNITED

TRANSPORTATION UNION,

LOCAL 1745,

Plaintiffs,

PAUL LIVINGSTON, Plaintiffs’

Attorney,

Appellant,

v.

CITY OF ALBUQUERQUE; MARTIN

CHAVEZ, Mayor; LAWRENCE

RAEL, Chief Administrative Officer;

ANNE WATKINS, Director of Transit

Department; VIVIAN SANCHEZ,

Director of Human Resource;

PEGGY A. HARDWICK, Director of

Employee Relations,

Defendants-Appellees.

No. 99-2359

(D.C. No. CIV-97-1348-JP)

(D. N.M.)

ORDER AND JUDGMENT *

Before TACHA , EBEL , and LUCERO , Circuit Judges.
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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.

Appellant Paul Livingston appeals from the district court’s order entering a

formal reprimand and admonition against him. We affirm.

Livingston is the attorney for the plaintiffs in this action. He filed a

complaint in this case pursuant to 42 U.S.C. § 1983 on November 26, 1996,

charging that the defendants had violated plaintiff H. Anthony Chavez’s

constitutional, statutory and contractual rights by terminating and refusing to

reinstate Chavez’s employment as a bus driver for the City of Albuquerque (City). 

The complaint included allegations against defendant Edward F. Benavidez,

a hearing officer for the City. It charged that Benavidez had improperly denied

Chavez a post-termination hearing after Chavez had been terminated from his job. 

Specifically, the complaint alleged that Benavidez had refused to recognize

Chavez’s counsel at the scheduled post-termination hearing, had questioned his

jurisdiction to hold the hearing, had refused to hold the hearing, and had later

recused himself without explanation.
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On October 21, 1997, counsel for Benavidez sent Livingston a letter

demanding that Livingston withdraw the complaint against Benavidez. The letter

argued that Benavidez was absolutely immune for his conduct as a hearing

officer, characterized the complaint against Benavidez as “unwarranted by

existing law” and warned that unless it were withdrawn, Benavidez would seek

Rule 11 sanctions against Livingston and his clients. Appellant’s App. at 25.

Livingston failed to withdraw the complaint. Benavidez then handdelivered a motion to dismiss on the basis of absolute immunity to Livingston on

November 3, 1997. When Livingston still failed to withdraw, Benavidez filed the

motion with the district court on December 4, 1997. Plaintiffs did not respond to

the motion. The district court, acting on the motion, dismissed Benavidez from

the suit on the basis of absolute immunity on December 17, 1997.

On February 17, 1998, Benavidez served a motion for Rule 11 sanctions on

Livingston. He then filed the motion with the district court on March 12, 1998. 

On March 13, 1998, Livingston served a response and cross-motion for Rule 11

sanctions on Benavidez. He did not file this motion with the district court until

March 23, 1998. On March 19, 1998, noting no response from Livingston, the

district court granted Benavidez’s motion, and scheduled a hearing for March 30,

1998, to determine the nature of the sanctions to be imposed. 
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On the day of the hearing, Livingston filed a motion for reconsideration of

the March 19, 1998 order awarding sanctions. At the hearing, the court noted that

Livingston’s response and cross-motion for sanctions, and his motion for

reconsideration, had purportedly been filed on behalf of both Livingston and his

clients. It warned that the cross-motion for sanctions was procedurally defective

and that the pleadings Livingston had filed since the March 19, 1998 order might

themselves give rise to sanctions against Livingston or his clients. The court gave

Livingston until April 10, 1998 to consult with his clients and to either to

withdraw his pleadings or file a statement with the court that his clients consented

to having them filed on their behalf. Additionally, the court denied Livingston’s

cross-motion for Rule 11 sanctions. 

On April 9, 1998, Livingston withdrew his response to Benavidez’s motion

for sanctions and the memorandum in support. He filed notice, however, that his

clients had authorized him to proceed with the motion for reconsideration. 

Further briefing proceeded on the motion for reconsideration.

On September 8, 1998, the district court dismissed the underlying suit. On

the same day, Magistrate Judge Lorenzo F. Garcia entered an order ruling on

Livingston’s motion for reconsideration. In the carefully reasoned order, Judge

Garcia found that Livingston’s motion had been well taken, because in filing the

motion for sanctions after the entry of the dispositive order, Benavidez had failed
1 Neither the magistrate judge’s recommendation nor the district court’s

order expressly states whether the sanctions were entered under Rule 11,

28 U.S.C. § 1927, or the court’s inherent power. Section 1927 provides for an

award of costs, expenses and attorney’s fees, none of which were awarded here;

therefore, it is unlikely that the order of reprimand was entered pursuant to

§ 1927. Where both Rule 11 and the court’s inherent power are available,

ordinarily the district court should rely on Rule 11 to impose sanctions. See

Chambers v. NASCO, Inc. , 501 U.S. 32, 50 (1991). The magistrate judge’s

recommendation also contains numerous references to Rule 11 standards. 

Accordingly, we will treat the sanctions as if entered under Rule 11.

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to comply with the safe harbor provisions of Fed. R. Civ. P. 11(c)(1)(A). He

further found that although sanctions were not available under Rule 11(c)(1)(A),

they could be imposed sua sponte by the court pursuant to Rule 11(c)(1)(B),

28 U.S.C. § 1927, or under the court’s inherent power. Judge Garcia gave

Livingston fifteen days in which to respond to the proposed order of sanctions.

On December 15, 1998, after reviewing Livingston’s response, Judge

Garcia recommended that Livingston be formally reprimanded and strongly

admonished concerning his conduct. After reviewing Livingston’s objections to

the recommendation, the district court denied Livingston’s request for an

evidentiary hearing and imposed the recommended sanctions. 

Livingston raises both procedural and substantive challenges to the award

of sanctions against him. We review all aspects of the district court’s Rule 11

determination for an abuse of discretion. See Cooter & Gell v. Hartmarx Corp. ,

496 U.S. 384, 405 (1990). 1
2

In his objections to the magistrate judge’s proposed order of sanctions,

Livingston stated, “whether [the recommendation for sanctions] lies beyond the

jurisdiction of the Magistrate Court under the district court’s referral . . . [is a

matter] that should be addressed and decided by the Court pursuant to any award

of sanctions.” Appellant’s App. at 173. This generalized objection falls short of

preserving the specific issues raised here for appeal. See Griego v. Padilla (In re

Griego) , 64 F.3d 580, 583 (10th Cir. 1995) . Moreover, it expressly acknowledges

the existence of a referral by the district court. 

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Livingston first challenges Judge Garcia’s authority to adjudicate the

sanctions issue. He argues that neither Fed. R. Civ. P. 72(b) nor 28 U.S.C. § 636

provides authority for a magistrate judge to conduct proceedings concerning

sanctions against an attorney. He further argues that the district court never

entered an order referring the case to Judge Garcia. Livingston’s challenge to the

magistrate judge’s statutory authority has been waived by his failure to raise it in

the district court. 2 See Clark v. Poulton , 963 F.2d 1361, 1367 (10th Cir. 1992)

(“[A] magistrate judge’s lack of statutory authority is not a jurisdictional defect,

so any objection is waived if not raised”). Similarly, Livingston has waived his

challenge to the lack of a referral order by failing to raise it before the district

court. See Griego v. Padilla (In re Griego) , 64 F.3d 580, 583 (10th Cir. 1995).

Livingston next argues that the district court erred by failing to award Rule

11 sanctions against Benavidez. Livingston voluntarily withdrew his cross

motion for sanctions after the district court noted several procedural defects in the

way it had been presented, and stated that the motion itself might be subject to
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sanctions under Rule 11. Livingston declined to accept the district court’s

invitation to renew his motion in correct procedural posture. Accordingly, he has

also waived this issue.

Livingston further contends that the district court erred on the merits by

entering sanctions against him. The magistrate judge found that Livingston’s

claim against Benavidez was not warranted by existing law, and that Livingston

was not seeking to extend, modify or reverse existing law or to establish new law

in raising the claim. He found that Livingston had raised, and lost, the issue of

whether a city personnel hearing officer could be sued pursuant to 42 U.S.C.

§ 1983 in several previous cases in which the hearing officer had been dismissed

because of absolute immunity. He also found that Livingston knew that authority

from this court had held that a hearing officer was immune from liability. See

Saavedra v. City of Albuquerque , 73 F.3d 1525, 1530 (10th Cir. 1996).

Livingston admits that he represented the plaintiff in Saavedra , and thus

knew the holding of the case. He argues, however, that he should not have been

sanctioned because Saavedra is factually distinguishable from this case. The

plaintiff in Saavedra attacked the public hearing officer for his recommended

decision. Here, Livingston attacked Benavidez for maliciously delaying the

proceedings and for unjustifiably recusing himself. The purported distinction is
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one without a difference, as neither of Livingston’s theories of liability offers an

adequate rationale for denying absolute immunity. 

Our decision in Saavedra was based on Butz v. Economou , 438 U.S. 478,

511-14 (1978), which extended the same absolute immunity protection afforded to

judges to administrative hearing officers. Butz notes that a judge’s malicious

motive is irrelevant to the determination of whether he is entitled to absolute

immunity. See Butz , 483 U.S. at 493; see also Pierson v. Ray , 386 U.S. 547, 554

(1967). Shorn of its “malicious motive” element, then, Livingston’s argument is

that Benavidez lacked absolute immunity and was liable to suit solely because he

delayed the proceedings.

It is well-established that scheduling decisions in proceedings are taken

within the adjudicator’s judicial capacity and lie within the realm of judicial

discretion; the judge who makes them is therefore entitled to absolute immunity. 

See, e.g. , Hagerty v. Keller , 474 U.S. 968, 969 & n.2 (1985) (Burger, J., specially

concurring in denial of writ of certiorari) (Mem.). “A court’s inherent power to

control its docket is part of its function of resolving disputes between parties. 

This is a function for which judges . . . are afforded absolute immunity.” 

Rodriguez v. Weprin , 116 F.3d 62, 66 (2d Cir. 1997). Livingston’s argument that
3 This is not to say that a litigant vexed by improper delay in proceedings is

without a remedy. That remedy, however, is an application for writ of mandamus

to the appropriate court, not a § 1983 suit for damages against the judge.

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Benavidez lacked immunity for delaying the proceedings is therefore entirely

lacking in merit. 3 

Livingston’s other argument for denying absolute immunity lies with

Benavidez’s allegedly unexplained recusal. The decision whether to recuse

clearly “involves the kind of discretionary decisionmaking that the doctrine of

judicial immunity is designed to protect,” Antoine v. Byers & Anderson, Inc. ,

508 U.S. 429, 435 (1993); see Nichols v. Alley , 71 F.3d 347, 350 (10th Cir. 1995)

(noting discretionary nature of recusal decision). Livingston’s attempt to avoid

absolute immunity based on the recusal decision lacks merit.

Finally, Livingston argues that the award of sanctions is unfair and chills

effective advocacy. In particular, he complains that the district court imposed

sanctions, in part, because of his failure to respond to Benavidez’s motion to

dismiss. Livingston contends he had a right to concede the motion by failing to

respond, in which case the appropriate “sanction” would have been the dismissal

itself. The magistrate judge found, however, that Livingston’s failure to advise

the court expressly that he did not oppose the motion resulted in unwarranted

delay in the proceedings. While Livingston’s dilatory conduct, by itself, may not

have warranted Rule 11 sanctions, when considered in connection with his
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frivolous attempt to hold Benavidez liable in spite of absolute immunity, it

properly forms part of the factual basis for the sanctions imposed. 

Having carefully reviewed the record, we conclude that the district court

did not abuse its discretion in imposing its reprimand and admonition against

attorney Livingston in this case. The judgment of the United States District Court

for the District of New Mexico is therefore AFFIRMED.

Entered for the Court

David M. Ebel

Circuit Judge