                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           DEC 5 2001

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                              Clerk



 MARTY BUENO,

          Plaintiff-Appellant,
                                                        No. 00-1372
 v.                                                 (D.C. No. 99-B-639)
                                                         (D. Colo.)
 DEBRA PYLE and TOM DURAN,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.



      Marty Bueno, a pro se state prisoner, brought this action under 42 U.S.C. §

1983 alleging that his constitutional rights were violated when monetary gifts in

his prison account were garnished to satisfy a state tax judgment against him. He

      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
named as defendants Debra Pyle, a prison employee who administers inmate

accounts, and Tom Duran, an employee with the state department of revenue

whom Mr. Bueno alleges played a role in the garnishment. The matter was

referred to a magistrate judge, who recommended that defendants’ motion for

summary judgment be granted. The district court reviewed the recommendation

de novo, concluded that it was correct, and granted the motion. Mr. Bueno

appeals and we affirm. 1

      The magistrate judge determined that gift money received by Mr. Bueno

was not exempt from garnishment under state law, and alternatively concluded

that Mr. Bueno’s claim was barred by res judicata. 2 On appeal, Mr. Bueno asserts

that the district court did not make the required de novo review of the magistrate

judge’s recommendation, that his claim is not barred by res judicata, and that his

constitutional rights were violated when defendants garnished his monetary gifts

in violation of state law.

      Mr. Bueno first contends that, after he filed objections to the magistrate’s

recommendation, the district court did not conduct the required de novo review.

      1
         We grant Mr. Bueno’s motion to proceed on appeal in forma pauperis.
Mr. Bueno is reminded that he is obligated to continue making partial payments
until the entire fee has been paid.
      2
        Mr. Bueno filed a previous civil rights action challenging the garnishment
of his prison account, alleging that the garnishment violated his right to due
process by failing to give him notice and his right to equal protection. Those
claims were resolved in favor of defendants.

                                        -2-
We disagree. It is true that de novo review is required when, as here, a party

makes timely objections to the report of a magistrate judge. See Northington v.

Marin, 102 F.3d 1564, 1570 (10th Cir. 1996). It is also true that a case must be

remanded when circumstances indicate that the district court did not review the

report de novo. See id. However, such circumstances are not present here.

“[T]he district court is presumed to know that de novo review is required.

Consequently, a brief order expressly stating the court conducted de novo review

is sufficient.” Id. The district court’s order expressly stated that Mr. Bueno had

filed specific written objections to the recommendation and that the court had

therefore conducted the required de novo review. See Rec. vol. I, doc. 38. Mr.

Bueno contends that the court could not have conducted a de novo review because

his objections were filed August 28, 2000, and the district court order was filed

the next day. This fact in no way provides grounds for questioning the district

court’s statement that it had performed the mandated de novo review. 3

      Next we turn to Mr. Bueno’s assertion that defendants are violating his

constitutional rights by garnishing his monetary gifts in violation of state law. In

so doing, we accept Mr. Bueno’s argument that this claim could not have been

presented in the prior proceeding and is therefore not barred by res judicata


      3
        The record is not extensive and consists only of pleadings and
attachments. Moreover, Mr. Bueno’s objections merely restate the legal argument
already presented in the pleadings.

                                         -3-
because the defendants in the prior action were not garnishing monetary gifts in

his account. We also accept Mr. Bueno’s contention that he did not use state law

procedures for protesting the garnishment because he did not receive a notice of

lien and garnishment until after the funds at issue were already being deducted

from his account. As discussed below, however, we conclude that monetary gifts

may be garnished under state law.

      Mr. Bueno bases his argument on C OLO . R EV . S TAT . A NN . § 13-54-104

(West 2001). This provision provides some protection to a judgment debtor by

placing limits on the percentage of his earnings subject to garnishment.

Accordingly, it applies only to a judgment debtor’s earnings as defined in the

statute itself. The statute is comprised of three sections: the first section defines

earnings for purposes of the statute, the second section sets out the maximum

percentages of a judgment debtor’s disposable earnings subject to garnishment,

and the third section sets out the circumstances in which the limits of section two

do not apply. The definitions of “disposable earnings” and “earnings” set out in

the first part of the statute do not include monetary gifts. See id. § 13-54-104(1),

(2). Because the statute by its terms only addresses the garnishment of earnings,

and because monetary gifts are not within the statute’s definition of earnings, the

statute is simply irrelevant to Mr. Bueno’s claim that monetary gifts are exempt




                                          -4-
from garnishment. 4

      Mr. Bueno is incorrect in assuming that the only funds subject to

garnishment are those addressed in section 13-54-104. The assets of a judgment

debtor may be garnished unless they are expressly exempted. See C OLO . R EV .

S TAT . A NN . § 13-54.5-103(2) and (3) (West 2001) (tangible personal property

capable of manual delivery subject to garnishment unless exempted by law); see

also Hudson v. Am. Founders Life Ins. Co., 417 P.2d 772, 776 (Colo. 1966)

(policy of the law to subject all property of judgment debtor not specifically

exempt to payment of his debts). While section 13-54-104 does provide

exemptions for a percentage of earnings, as discussed above monetary gifts are

not within that statute’s definition of earnings. Other exempt property is set out

in section 13-54-102, but monetary gifts are not among the exempt property listed

in that section either. Accordingly, we conclude that monetary gifts are subject to

garnishment under Colorado law, and that the garnishment here did not for that




      4
        We note that even if monetary gifts were within the definition of earnings
in section 13-54-104, that provision excludes from its garnishment limitations
“[a]ny debt due for any state or federal tax.” C OLO . R EV . S TAT . A NN . 13-54-
104(3)(a)(III) (West 2001).

                                        -5-
reason violate Mr. Bueno’s constitutional rights.

      The judgment of the district court is AFFIRMED.

                                      ENTERED FOR THE COURT


                                      Stephanie K. Seymour
                                      Circuit Judge




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