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        This order and judgment is not binding precedent except under the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


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      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


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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.




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      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


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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


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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


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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


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District of Colorado dismissing all claims is AFFIRMED.



                                    Entered for the Court


                                    WADE BRORBY
                                    United States Circuit Judge




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