* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Appellant Paul Livingston appeals from the districtcourt’s order entering a formal reprimand and admonition against him. We af firm. Livingston is the attorney for the plaintiffs in th is 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 byterminating and refusing to reinstate Chavez’s employment as a bus driver for the City of Albuquerque (City). The complaint included allegations against defendan t Edward F. Benavidez, a hearing officer for the City. It charged that Be navidez 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 ho ld the hearing, and had later recused himself without explanation.-3-

On October 21, 1997, counsel for Benavidez sent Liv ingston a letter demanding that Livingston withdraw the complaint ag ainst Benavidez. The letter argued that Benavidez was absolutely immune for his conduct as a hearing officer, characterized the complaint against Benavi dez as “unwarranted by existing law” and warned that unless it were withdr awn, Benavidez would seek Rule 11 sanctions against Livingston and his client s. Appellant’s App. at 25. Livingston failed to withdraw the complaint. Benav idez then handdelivered a motion to dismiss on the basis of absol ute 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 moti on, dismissed Benavidez from the suit on the basis of absolute immunity on Decem ber 17, 1997. On February 17, 1998, Benavidez served a motion forRule 11 sanctions on Livingston. He then filed the motion with the dist rict court on March 12, 1998. On March 13, 1998, Livingston served a response andcross-motion for Rule 11 sanctions on Benavidez. He did not file this moti on with the district court until March 23, 1998. On March 19, 1998, noting no respo nse from Livingston, the district court granted Benavidez’s motion, and sche duled a hearing for March 30, 1998, to determine the nature of the sanctions to b e imposed.-4-

On the day of the hearing, Livingston filed a motio n for reconsideration of the March 19, 1998 order awarding sanctions. At th e hearing, the court noted that Livingston’s response and cross-motion for sanction s, and his motion for reconsideration, had purportedly been filed on beha lf of both Livingston and his clients. It warned that the cross-motion for sanct ions was procedurally defective and that the pleadings Livingston had filed since t he March 19, 1998 order might themselves give rise to sanctions against Livingsto n 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 fi led notice, however, that his clients had authorized him to proceed with the moti on for reconsideration. Further briefing proceeded on the motion for recons ideration. On September 8, 1998, the district court dismissed the underlying suit. On the same day, Magistrate Judge Lorenzo F. Garcia en tered 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 disposi tive order, Benavidez had failed1 Neither the magistrate judge’s recommendation nor the district court’s

order expressly states whether the sanctions were e ntered under Rule 11, 28 U.S.C. § 1927, or the court’s inherent power. S ection 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 reprima nd 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 ente red under Rule 11. -5- to comply with the safe harbor provisions of Fed. R . Civ. P. 11(c)(1)(A). He further found that although sanctions were not avai lable under Rule 11(c)(1)(A), they could be imposed sua sponte by the court pursu ant to Rule 11(c)(1)(B), 28 U.S.C. § 1927, or under the court’s inherent pow er. 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 repr imanded and strongly admonished concerning his conduct. After reviewing Livingston’s objections to the recommendation, the district court denied Livin gston’s request for an evidentiary hearing and imposed the recommended san ctions. Livingston raises both procedural and substantive c hallenges 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). 12 In his objections to the magistrate judge’s propose d order of sanctions,

Livingston stated, “whether [the recommendation forsanctions] 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 gene ralized 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. -6- Livingston first challenges Judge Garcia’s authority to adjudicate the sanctions issue. He argues that neither Fed. R. Ci v. P. 72(b) nor 28 U.S.C. § 636 provides authority for a magistrate judge to conduc t proceedings concerning sanctions against an attorney. He further argues t hat 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 wai ved 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”). Simila rly, Livingston has waived his challenge to the lack of a referral order by failin g 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 erre d 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 moti on itself might be subject to-7-

sanctions under Rule 11. Livingston declined to ac cept the district court’s invitation to renew his motion in correct procedura l posture. Accordingly, he has also waived this issue. Livingston further contends that the district courterred on the merits by entering sanctions against him. The magistrate jud ge found that Livingston’s claim against Benavidez was not warranted by existi ng law, and that Livingston was not seeking to extend, modify or reverse existi ng 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 s ued pursuant to 42 U.S.C. § 1983 in several previous cases in which the heari ng officer had been dismissed because of absolute immunity. He also found that L ivingston 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 recomm ended decision. Here, Livingston attacked Benavidez for maliciously delaying the proceedings and for unjustifiably recusing himself. The purported distinction is-8-

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 imm unity protection afforded to judges to administrative hearing officers. Butz notes that a judge’s malicious motive is irrelevant to the determination of whethe r 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, t hen, Livingston’s argument is that Benavidez lacked absolute immunity and was lia ble to suit solely because he delayed the proceedings. It is well-established that scheduling decisions inproceedings are taken within the adjudicator’s judicial capacity and lie within the realm of judicial discretion; the judge who makes them is therefore e ntitled to absolute immunity. See, e.g. , Hagerty v. Keller , 474 U.S. 968, 969 & n.2 (1985) (Burger, J., speci ally concurring in denial of writ of certiorari) (Mem.). “A court’s inherent power to control its docket is part of its function of resol ving disputes between parties. This is a function for which judges . . . are affor ded absolute immunity.” Rodriguez v. Weprin , 116 F.3d 62, 66 (2d Cir. 1997). Livingston’s arg ument that3 This is not to say that a litigant vexed by imprope r delay in proceedings is

without a remedy. That remedy, however, is an appl ication for writ of mandamus to the appropriate court, not a § 1983 suit for dam ages against the judge. -9- Benavidez lacked immunity for delaying the proceedi ngs is therefore entirely lacking in merit. 3 Livingston’s other argument for denying absolute im munity lies with Benavidez’s allegedly unexplained recusal. The dec ision whether to recuse clearly “involves the kind of discretionary decisio nmaking 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 lac ks merit. Finally, Livingston argues that the award of sancti ons is unfair and chills effective advocacy. In particular, he complains th at the district court imposed sanctions, in part, because of his failure to respo nd to Benavidez’s motion to dismiss. Livingston contends he had a right to con cede the motion by failing to respond, in which case the appropriate “sanction” w ould 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 moti on resulted in unwarranted delay in the proceedings. While Livingston’s dilat ory conduct, by itself, may not have warranted Rule 11 sanctions, when considered i n connection with his-10-

frivolous attempt to hold Benavidez liable in spite of absolute immunity, it properly forms part of the factual basis for the sa nctions imposed. Having carefully reviewed the record, we conclude t hat the district court did not abuse its discretion in imposing its reprim and and admonition against attorney Livingston in this case. The judgment of the United States District Court for the District of New Mexico is therefore AFFIRME D.

Entered for the Court

David M. Ebel Circuit Judge