UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

PEDRO M. VILELA, 

 Plaintiff - Appellant,

v.

OFFICE OF RECOVERY SERVICES; 

STATE OF UTAH CHILD SUPPORT 

ENFORCEMENT; LIESA STOCKDALE, 

in her official and private capacity; UTAH 

COUNTY FOURTH DISTRICT COURT; 

AMY JONKHART, in her official and 

private capacity; MARIAN H. ITO, in her 

official and private capacity, 

 Defendants - Appellees.

No. 23-4096

(D.C. No. 2:22-CV-00699-DBB)

(D. Utah)

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ORDER AND JUDGMENT*

_________________________________

Before MATHESON, EID, and CARSON, Circuit Judges.

_________________________________

Pedro Vilela, appearing pro se, appeals the district court’s judgment 

dismissing his civil rights action without prejudice for failure to prosecute and the 

* After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in 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.

FILED

United States Court of Appeals

Tenth Circuit

May 29, 2024

Christopher M. Wolpert

Clerk of Court

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court’s denial of his post-judgment filings. Exercising jurisdiction under 28 U.S.C. 

§ 1291, we affirm.

I. BACKGROUND

A provision of the Federal Magistrates Act, 28 U.S.C. § 636, delineates the 

authority of federal magistrate judges. Section 636(c) provides that, in a civil action 

and “[u]pon the consent of the parties,” a magistrate judge may conduct all 

proceedings and enter judgment. Short of that, a “judge may designate a magistrate 

judge to hear and determine any pretrial matter pending before the court,” except for 

certain enumerated motions, including a motion to dismiss for failure to state a claim 

for relief. § 636(b)(1)(A). “[A] judge may also designate a magistrate judge . . . to 

submit to a judge of the court proposed findings of fact and recommendations for the 

disposition, by a judge of the court, of any motion excepted in subparagraph (A).” 

§ 636(b)(1)(B). Designations under § 636(b)(1) do not require the parties’ consent. 

See First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000) (“[W]here 

the parties [do] not consent to proceeding before the magistrate judge, the district 

court may designate a magistrate judge to consider various matters [under] § 636(b).” 

(citation omitted)); see also Garcia v. City of Albuquerque, 232 F.3d 760, 766 (10th 

Cir. 2000) (“Unlike . . . § 636(c)(1), . . . § 636(b)(1)(B) does not require the consent 

of the parties.”).

In this case, Vilela did not consent to a magistrate judge presiding over the 

entire case under § 636(c)(1), but a magistrate judge was designated under 

§ 636(b)(1). When defendants moved for an extension of time to file an answer to 

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Vilela’s amended complaint, the magistrate judge granted the motion based on a 

finding of good cause and excusable neglect. Vilela objected and moved to recuse 

the magistrate judge, arguing he had ruled without Vilela’s consent and had unfairly 

assisted defendants. The district court overruled the objection and denied recusal, 

explaining to Vilela that designation of a magistrate judge under § 636(b)(1) does not 

require the parties’ consent and concluding that granting the extension of time was 

authorized and proper under the governing legal standard. The court declined to 

recuse the magistrate judge because Vilela had asserted only dissatisfaction with the 

magistrate judge’s conclusions.

At the heart of this appeal is the magistrate judge’s “Ruling & Order,” R. at 58 

(capitalization normalized), which involved defendants’ motion to dismiss Vilela’s 

amended complaint for, among other things, failure to state a claim for relief and 

failure to comply with the pleading requirements of Federal Rule of Civil 

Procedure 8. The magistrate judge concluded the amended complaint did not meet

Rule 8’s requirements, in part because of a nearly complete lack of factual 

allegations. But instead of granting the motion to dismiss, the magistrate judge 

“RECOMMEND[ED]” denying the motion to dismiss without prejudice and 

“ORDERED” Vilela to file a second amended complaint by April 24, 2023. R. at 63. 

The magistrate judge warned Vilela that the “[f]ailure to do so may result in a 

recommendation to dismiss the action.” Id.

Vilela filed a timely objection to the Ruling & Order, arguing that because he 

had not consented, the Ruling & Order exceeded the magistrate judge’s authority 

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under § 636(b)(1)(B). The district court overruled the objection. The court 

concluded Vilela had merely “rehashe[d] the consent argument that the court ha[d]

previously rejected.” R. at 80 (footnote omitted). And finding no error in the Ruling 

& Order, the district court adopted its recommendation, denied defendants’ motion to 

dismiss without prejudice, and ordered Vilela to file a second amended complaint by 

May 8, 2023.

Vilela never filed a second amended complaint. Instead, he filed an 

“objection” to the district court’s order (really, a motion for reconsideration) and two 

requests for a ruling on that objection. After the May 8 deadline passed, the 

magistrate judge issued a “Report and Recommendation” (R&R). R. at 103

(capitalization normalized). The magistrate judge recommended dismissing the case 

without prejudice for failure to prosecute pursuant to Federal Rule of Civil 

Procedure 41(b).

Vilela filed a timely objection to the R&R but continued to take issue with the 

Ruling & Order, arguing that by ordering Vilela to file a second amended complaint 

and denying the motion to dismiss, the magistrate judge exceeded his authority under 

§ 636(b)(1)(B). Vilela noted that in the R&R, the magistrate judge stated he had (in 

the Ruling & Order) “‘denied Defendants’ Motion to Dismiss.’” R. at 113 (quoting 

R. at 103). Vilela therefore concluded that he “had no obligation to abide by the . . . 

Ruling & Order.” R. at 109 (capitalization normalized). Vilela also accused the 

magistrate judge and the district court of criminally conspiring to violate his due 

process rights.

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The district court rejected these arguments. The court observed that in the

Ruling & Order, the magistrate judge had only recommended denying the motion to 

dismiss, and that was within the authority granted by § 636(b)(1)(B). The court also 

noted that regardless, it had separately ordered Vilela to file a second amended 

complaint. The court next determined that the remainder of Vilela’s objection was 

“general” in nature and “cast[] unfounded aspersions” at both the magistrate judge 

and the court. R. at 120. The court found that Vilela “is not confused about what he 

needs to do (file a second amended complaint to address the deficiencies identified in 

the magistrate judge’s order), nor does he lack the ability to take the required action. 

Instead, he simply does not want to comply with the orders issued.” Id. (footnote 

omitted). The court further found that “Vilela does not intend to file a second 

amended complaint, but instead to continue insisting that he need not.” R. at 121. 

After explaining that even a pro se litigant must “comply with procedural rules” and 

finding no error in the R&R, the district court overruled Vilela’s objection, adopted 

the R&R, and dismissed the action without prejudice pursuant to Rule 41(b). Id.

(internal quotation marks omitted). The court acknowledged Vilela’s pending 

objection to the court’s order adopting the Ruling & Order but did not separately rule 

on it. The court entered a separate judgment. 

Vilela then filed a motion for reconsideration, which the district court denied. 

The court rejected Vilela’s argument that the Ruling & Order exceeded the magistrate 

judge’s authority under § 636(b)(1)(B) because Vilela had not consented to the 

magistrate judge’s participation, again explaining that designating a magistrate judge 

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to issue recommendations on dispositive matters “is not contingent on Mr. Vilela’s 

consent to the magistrate judge’s participation.” R. at 141 (brackets and internal 

quotation marks omitted). The court also rejected Vilela’s argument that the 

magistrate judge lacked authority to order Vilela to file a second amended complaint 

because that order did not involve any of the motions enumerated in § 636(b)(1)(A) 

that a magistrate judge may not determine. In the alternative, the district court 

pointed out that even if the magistrate judge lacked authority to recommend or order 

Vilela to file a second amended complaint, the court itself had ordered him to do so, 

and Vilela’s failure to comply with the court’s order resulted in dismissal of his 

action.

Vilela filed an objection to that ruling, asserting the same general arguments. 

He also filed a notice of appeal. The district court overruled the objection as “both 

procedurally unsupported and substantively without merit.” R. at 153.

II. DISCUSSION

“We review dismissals under Rule 41(b) for abuse of discretion.” Nasious v. 

Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 (10th Cir. 2007). Because 

Vilela filed his motion for reconsideration and his objection to the order denying that 

motion within 28 days of the judgment and questioned the judgment, we review the 

denial of those filings for an abuse of discretion. See Hayes Fam. Tr. v. State Farm 

Fire & Cas. Co., 845 F.3d 997, 1004 (10th Cir. 2017) (treating such motions as filed 

under Fed. R. Civ. P. 59(e) and reviewing for an abuse of discretion). A district court 

abuses its discretion if its ruling “was arbitrary, capricious, whimsical, or manifestly 

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unreasonable,” or the court made “an error of law.” Pueblo of Jemez v. United 

States, 63 F.4th 881, 889 (10th Cir. 2023) (internal quotation marks omitted). We 

afford a pro se litigant’s filings a liberal construction, but we may not act as his 

advocate. Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

Vilela contends that based on his refusal to consent to the magistrate judge’s 

authority, he was not obligated to file a second amended complaint because the 

magistrate judge’s Ruling & Order was a “final order” denying defendants’ motion to 

dismiss and therefore in excess of the magistrate judge’s authority under 

§ 636(b)(1)(B). Aplt. Opening Br. at 3; see also id. at 8 (“[T]he magistrate [judge] 

clearly denied a motion to dismiss.”). Vilela’s argument rests largely on the title of 

the first recommendation—Ruling & Order—and on the magistrate judge’s statement 

in the R&R that he had, in the Ruling & Order, “denied Defendants’ Motion to 

Dismiss,” R. at 103. Vilela accuses the district court of trying to “cover up” the 

magistrate judge’s violation of § 636(b)(1)(B) by referring to the Ruling & Order as a 

recommendation and then adopting it. Aplt. Opening Br. at 4, 6. And he contends 

the magistrate judge should have been recused for abusing his authority under § 636.

These arguments ignore the realities of this case and elevate form over 

substance. Despite the title of the Ruling & Order and the magistrate judge’s later 

statement that he had denied the motion to dismiss, the magistrate judge provided 

only a recommendation—in all capital letters—on defendants’ motion to dismiss. 

See R. at 63 (“For the reasons stated, the Court RECOMMENDS that Defendants’ 

Motion to Dismiss the Amended Complaint be DENIED WITHOUT PREJUDICE.”). 

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That recommendation is entirely consistent with the authority granted by 

§ 636(b)(1)(B) and, as the district court explained to Vilela, does not depend on the 

parties’ unanimous consent to the magistrate judge’s jurisdiction. See First Union 

Mortg. Corp., 229 F.3d at 995; Garcia, 232 F.3d at 766.

Vilela complains the district court did not rule on his objection to the court’s 

order adopting the Ruling & Order despite that he twice asked the court to do so. But 

given our conclusion that the district court did not err in adopting the Ruling & 

Order’s recommendation, we consider the court’s failure to rule on the objection

harmless. Vilela has not demonstrated otherwise.

Vilela argues the district court did not address all the issues he raised in his 

objection to the R&R, his post-judgment motion for reconsideration, and his 

objection to the dismissal order. In his opening brief, however, he fails to identify 

what those allegedly unaddressed issues are or explain how consideration of them 

would have altered the outcome in the district court or on appeal. We therefore 

conclude he has waived review of this argument through inadequate briefing. See 

Sawyers v. Norton, 962 F.3d 1270, 1286 (10th Cir. 2020) (“[A]rguments that are 

inadequately presented in an opening brief” or “presented only in a perfunctory 

manner” are “abandoned or waived” (brackets and internal quotation marks 

omitted)).

Vilela contends the district court dismissed his action without making 

adequate factual findings and legal conclusions and without examining “the actual 

procedural history of the case,” Aplt. Opening Br. at 11. Our review of the record, 

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however, indicates the district court was well aware of the procedural history of this 

case. See SEC v. Power Res. Corp., 495 F.2d 297, 298 (10th Cir. 1974) (explaining 

that although “[t]here is no precise rule as to what circumstances justify a dismissal 

for failure to prosecute,” a court must examine “the procedural history of [the] 

case”). It also indicates the court provided adequate findings of fact and conclusions 

of law before dismissing the action.

Finally, Vilela appears to argue the district court lacked jurisdiction to deny 

his objection to the dismissal order because he filed his notice of appeal while that 

objection was pending. He is mistaken. See Fed. R. Civ. P. 62.1(a)(2) (“If a timely 

motion is made for relief that the court lacks authority to grant because of an appeal 

that has been docketed and is pending, the court may . . . deny the motion.”).

III. CONCLUSION

We affirm the district court’s judgment and its rulings denying Vilela’s 

post-judgment filings.

Entered for the Court

Allison H. Eid

Circuit Judge

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