                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      May 22, 2007
                             FO R TH E TENTH CIRCUIT               Elisabeth A. Shumaker
                                                                       Clerk of Court



    DAN YATES,

                Plaintiff-Appellant,

    v.                                                    No. 06-1378
                                              (D.C. No. 06-CV-00089-W DM -BNB)
    ANGELA ARKIN, in her individual                        (D . Colo.)
    and official capacities; DORIS
    TR UH LA R, an individual; TR UHLAR
    AND TRUHLAR, L.L.C., a Colorado
    Law Firm; ELO D E B RO D BEC K,
    an individual; CH ILD A ND FAM ILY
    CENTER, INC., a Colorado
    corporation; CLAIRE PURCELL, in
    her individual and official capacities;
    LOUISE YATES, an individual;
    DOUGLAS COUNTY, a municipality;
    M ARY J. M ULLARKEY, Justice, in
    her official capacity,

                Defendants-Appellees.



                             OR D ER AND JUDGM ENT *


Before BR ISC OE, M cKA Y, and GORSUCH, Circuit Judges.



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
       Dan Yates filed suit in federal district court alleging various violations of

his civil rights arising out of prior state court proceedings. The case was assigned

to District Judge W alker D. M iller, who in turn referred the matter to a magistrate

judge pursuant to 28 U.S.C. § 636(b). Rather than pursue the merits of his cause,

from the outset M r. Yates curiously chose to litigate the magistrate judge’s

authority. First, in a filing entitled, “Notice of Correction Re: Order of Reference

to M agistrate Judge,” he alleged that the district court improperly delegated its

authority to the magistrate judge. Aplt. App. at 20. Later, he registered his

dissatisfaction in response to a motion to dismiss, arguing that the magistrate

judge had no authority over his case. Then, after filing three separate motions,

each of which the magistrate judge denied as frivolous, M r. Yates failed to appear

at a pretrial hearing, instead faxing to the court a document entitled, “Plaintiff’s

Reservation of Rights Pursuant to Article III.” Id. at 323. In this paper,

M r. Yates accused the magistrate judge of derogating federal law by scheduling

the hearing and issuing orders interfering with how he wished to pursue this

litigation.

       W hen M r. Yates failed to appear at the pretrial hearing, the magistrate

judge ordered him to show cause w hy the case should not be dismissed for failure

to prosecute and obey court orders. Rather than respond to the magistrate judge’s

directive, M r. Yates lodged with the district court a document styled, “A ppeal to

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Judge W alker D . M iller For O rder to Show Cause W hy M agistrate Boyd N.

Boland Should Continue to Act Outside the Limited Authority Conferred by

28 U.S.C. § 636.” R., Doc. 91 at 1. In this filing, M r. Yates accused the district

court of “willful maladministration” for permitting the magistrate judge to

exercise judicial authority without being a judicial officer. Id. at 2. In light of

M r. Yates’s failure to respond to the show-cause order, the magistrate judge

recommended to the district court that the case be dismissed with prejudice.

      The district judge accepted the bulk of the magistrate judge’s report, but

modified the recommended remedy to dismissal of the case without prejudice.

Focusing on the magistrate judge’s analysis under Ehrenhaus v. Reynolds,

965 F.2d 916, 921 (10th Cir. 1992), the district court agreed that dismissal with

prejudice w as permissible, but decided that dismissal without prejudice w as more

appropriate. In arriving at this conclusion, the district judge found that M r. Yates

filed frivolous documents, at times invoking irrelevant portions of the M agistrate

Act, 28 U.S.C. § 636; failed to appear at the pretrial hearing; and repeatedly

challenged the magistrate judge’s authority. Although the district court declined

to find that M r. Yates failed to prosecute the case, the court agreed that M r. Yates

repeatedly failed to obey law ful orders. In response, M r. Yates filed this appeal.

      Pointing out that Judge M iller was assigned to his case after another judge

was stricken from the district court’s case assignment sheet, M r. Yates first

asserts that he was denied neutral case assignment. Because this argument was

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not raised below, we may review it only for the presence of plain error. Plain

error is (i) error, (ii) that is plain, which (iii) affects substantial rights, and which

(iv) seriously affects the fairness, integrity, or public reputation of judicial

proceedings. United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199 (10th Cir.

2007).

         W e perceive no error at all. District courts have broad discretion to assign

cases to particular judges. United States v. Pearson, 203 F.3d 1243, 1256

(10th Cir. 2000). Indeed, we have observed that some courts grant parties neither

the right to a particular judge nor the right to random assignment. Id. Here, the

record shows only that another judge’s name was stricken from the case

assignment sheet and Judge M iller’s added. The record reflects no indication of

impropriety, and M r. Yates supplies no evidence or argument remotely suggesting

anything untoward took place; accordingly, we discern no abuse of the discretion

vested in the district court in ordering its own affairs. 1



1
   M r. Yates attempts to cure this defect in his appellate papers w ith a recently
filed “M otion for Action of the Judicial Council and for Immediate Remand to
Judge Richard P. M atsch.” M r. Yates presses that the district court’s case
assignment procedure by random computer draw selected Judge M atsch to hear
the underlying action and asks us to infer malfeasance by the district court clerk
in the reassignment of this matter to Judge M iller and in its subsequent
assignment to Judge M iller on April 26, 2007, of a new matter filed on behalf of
M r. Yates. However, the very affidavits supporting his motion identify that the
clerk informed M r. Yates that Judge M atsch exercised his permissible
discretionary authority as a senior judge to reject the assignment. See D.C. Colo.
LCivR. 40.1B. M r. Yates asserts that we must infer foul play because the clerk’s
                                                                          (continued...)

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      M r. Yates next contends the show-cause order was, in effect, a sanction of

dismissal, something which, he submits, magistrate judges may not lawfully issue.

It is certainly true that “[f]ederal magistrate judges are creatures of statute, and so

is their jurisdiction.” First Union M ortgage Corp. v. Smith, 229 F.3d 992, 995

(10th Cir. 2000) (alterations and quotation omitted). It is also true that where, as

here, the parties do not consent to proceedings before a magistrate judge, the

district court may nonetheless designate a magistrate judge to consider certain

delimited matters – and that expressly excluded from such matters are orders

dismissing an action involuntarily. See 28 U.S.C. § 636; Ocelot Oil Corp. v.

Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir. 1988).

      The problem with M r. Yates’s argument is that the magistrate judge in this

case acted in full accord with all of the relevant statutory markers. Here, the

district judge designated the magistrate judge to conduct pretrial proceedings and




1
 (...continued)
alleged explanation of Judge M atsch’s denial of the assignment – that Judge
M atsch was “not accepting pro se cases” – is untenable in light of the absence of
a blanket chambers policy rejecting all pro se filings at all times. W e find no
contradiction here because the absence of blanket policy does not demand a judge
to accept all pro se cases; indeed, a senior judge could wish to seek balance in his
or her docket and accomplish this end by presiding over a limited number of pro
se cases at any given time. M r. Yates’s remaining argument on this score also
lacks merit because district court rules provide that where a pro se plaintiff had a
case terminated within 12 months of filing a new matter, that new matter “shall
be” assigned to the judge who presided over the terminated case; thus we see no
error in the April 26, 2007, assignment to Judge M iller. See D.C. Colo. LCivR.
40.1C.

                                          -5-
submit proposed findings of fact and recommendations for rulings on dispositive

motions – something entirely consistent with the statutory scheme. W hen

M r. Yates failed to appear at the pretrial hearing, the magistrate judge ordered

him to show cause why his case should not be dismissed; this order was not a

sanction of dismissal, but an opportunity for M r. Y ates to explain his behavior.

W hen M r. Yates opted to forgo that opportunity by addressing his response

directly to the district judge, the magistrate judge recommended to the district

judge under Section 636(b) that the case be dismissed with prejudice. The

magistrate judge did not dismiss M r. Yates’s case – rather, the district court did –

and thus at no time did the magistrate judge exceed his lawful authority. 2

      M r. Yates next argues that, however this may be, the district judge still

failed to review the magistrate judge’s dismissal recommendation de novo. See

28 U.S.C. § 636(b)(1)(C) (“A judge of the court shall make a de novo

determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.”). The record does not support this

allegation either. Indeed, the district judge expressly stated that he had “reviewed

de novo the pertinent portions of the record,” including M r. Yates’s charge that




2
   M r. Yates similarly charges that the magistrate judge issued a finding of
contem pt beyond his statutory authority. But the magistrate judge simply did
nothing of the sort; neither a show-cause order nor a recommendation of dismissal
is a finding of contempt.

                                          -6-
the magistrate had exceeded his authority, R., Doc. 119 at 1, and we are directed

to nothing in the record causing us to doubt this representation.

      Lastly, M r. Yates contends that the district court’s local civil rule 41.1 is

void because it conflicts with Fed. R. Civ. P. 41(b). Local civil rule 41.1 of the

United States District Court of Colorado permits a “judicial officer” (including a

magistrate judge, see D.C. Colo. LCivR. 1.1F), to issue an order to show cause

why a case should not be dismissed for failure to comply with court orders, and it

authorizes a district judge to dismiss the case if good cause is not shown:

      A judicial officer may issue an order to show cause w hy a case
      should not be dismissed for lack of prosecution or for failure to
      comply with these rules, the Federal Rules of Civil Procedure, or any
      court order. If good cause is not shown within the time set in the
      show cause order, a district judge or a magistrate judge exercising
      consent jurisdiction may enter an order of dismissal with or without
      prejudice.

D.C. Colo. LCivR. 41.1. M eanwhile, Fed. R. Civ. P. 41(b) provides that “a

defendant may move for dismissal of an action” if the plaintiff fails to prosecute a

case or comply with court orders.

      M r. Yates argues that the district court’s local rule permitting the court to

sua sponte dismiss a case conflicts with Fed. R. Civ. P. 41(b) because the latter

speaks only of a defendant’s motion for dismissal. This argument has no merit

for the two provisions are complementary, not contradictory; indeed, our

precedent interprets Fed R. Civ. P. 41(b) as impliedly bestowing the district court

with the authority directly conferred by D.C. Colo. LCivR. 41.1 challenged by

                                          -7-
M r. Y ates here. See Olsen v. M apes, 333 F.3d 1199, 1204 n.3 (10th Cir. 2003)

(“Although the language of Rule 41(b) requires that the defendant file a motion to

dismiss, the Rule has long been interpreted to permit courts to dismiss actions sua

sponte for a plaintiff’s failure to prosecute or comply with the rules of civil

procedure or court’s orders.”). M r. Yates did not show good cause – or really any

legally cognizable cause at all – why he failed to appear at the motions hearing,

refused to acknowledge the magistrate judge’s jurisdiction, and consistently

disregarded the court’s orders. The district court’s decision to dismiss the case

sua sponte under these circumstances comports completely with the authority

afforded to it.

       The judgment of the district court is affirmed and all outstanding motions

are denied as moot.



                                                Entered for the Court


                                                Neil M . Gorsuch
                                                Circuit Judge




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