Record v. Healthone of Denver, Inc (Full Text)

Case 1:10-cv-03106-REB -MJW Document 86 Filed 05/26/11 USDC Colorado Page 1 of 20

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 10-cv-03106-REB-MJW

ROBERT RECORD,

Plaintiff,

HEALTHONE OF DENVER, INC.,
DENVER MID-TOWN SURGERY CENTER, LTD,
COLORADO ANESTHESIA CONSULTANTS, P.C., and
JOHN VALENTINE,

Defendants.

ORDER REGARDING
(1) COLORADO MEDICAL BOARD’S MOTION TO MODIFY SUBPOENA DUCES
TECUM OR FOR PROTECTIVE ORDER
(DOCKET NO. 52)

AND

(2) DR. JOHN D. VALENTINE’S MOTION FOR PROTECTIVE ORDER
(DOCKET NO. 75)

Entered by Magistrate Judge Michael J. Watanabe

This matter is before the court on (1) Colorado Medical Board’s Motion to Modify

Subpoena Duces Tecum or for Protective Order (docket no. 52); (2) Dr. John D.

Valentine’s Joinder in Colorado Medical Board’s Motion to Modify Subpoena Duces

Tecum or for Protective Order (docket no. 55); (3) Defendants Healthone and Midtown’s

Joinder in Colorado Medical Board’s Motion to Modify Subpoena Duces Tecum or for

Protective Order (docket no. 57); and (4) Dr. John D. Valentine’s Motion for Protective

Order (docket no. 75). The court has reviewed the subject motions (docket nos. 52 and

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75), the responses (docket nos. 64 and 85), and the reply (docket no. 69). The court

has also reviewed, in camera, the Colorado Medical Board’s investigative file

concerning Defendant John Valentine, M.D., that was submitted to this court pursuant to

a Minute Order (docket no. 74) issued by Magistrate Judge Watanabe dated April 7,

2011. This investigative file has been filed with the court under seal along with a thirty-

two- (32) page Privilege Log. The investigative file has been Bates stamped with pages

numbered VAL 0001 to VAL 1174, inclusive. In addition, the court has taken judicial

notice of the court file and has considered applicable Federal Rules of Civil Procedure

and case law. The court now being fully informed makes the following findings of fact,

conclusions of law, and Order.

In the subject motion (docket no. 52), the Colorado Medical Board (“Board”)

seeks an Order from this court pursuant to Fed. R. Civ. P. 45(c)(3) to modify the

subpoena duces tecum served upon it on January 26, 2011, or in the alternative for a

Protective Order pursuant to Fed. R. Civ. P. 26(c) and for an in camera inspection with

any resultant disclosure to be made under seal. The Board contends that the

documents that Plaintiff seeks from the Board are considered peer review committee

materials, protected under state and federal law. Accordingly, the Board moves this

court to modify the subpoena duces tecum to limit it to those documents produced (as

redacted) and for a protective order over the remainder of the Board’s files, including

documents that are to be maintained as confidential by state statute, attorney-client

protected documents, and documents which are protected by the work product

privilege. The Board relies upon the legal authority cited by the Board as to each

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document that is outlined in the Board’s thirty-two- (32) page Privilege Log that was

submitted along with the actual documents that make up the Privilege Log for in camera

review by this court.

Plaintiff seeks the information requested in the subpoena duces tecum to refute

Defendant John D. Valentine’s contention that he was not drunk and did not sexually

harass Plaintiff and to support Plaintiff’s punitive damage claim. Moreover, Plaintiff

argues that this court should disregard state law privileges in this case and in support of

such contention relies upon Atteberry v. Longmont United Hosp., 221 F.R.D. 644 (D.

Colo. 2004); Ryskin v. Banner Health, Inc., 2010 WL 2742710 (D. Colo. July 9, 2010);

and Zander v. Craig Hospital, 267 F.R.D. 563 (D. Colo. 2010).

In the subject motion (docket no. 75), Defendant John D. Valentine, M.D., seeks

a Protective Order from this court pursuant to Fed. R. Civ. P. 26(c) to prevent disclosure

of documents that Defendant Valentine argues are subject to statutory and common law

protections that include:

Records pertaining to professional peer review committees protected by

§§ 12-36.5-104(10) and 12-36.5-104(4)(b), C.R.S.;

Records pertaining to proceedings before the Colorado Board of Medical

Examiners protected by § 12-36-118(10)(a)(b), C.R.S.; and

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Confidential personal information, including financial and personal health

information, not subject to discovery.

Plaintiff argues that Defendant John Valentine’s Motion for Protective Order

(docket no. 75) is without merit and that the contested information that Plaintiff seeks is

relevant and material to the issues pending before this Court and is not protected.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The court finds:

That I have jurisdiction over the subject matter and over the parties

to this lawsuit;

That venue is proper in the state and District of Colorado;

That each party has been given a fair and adequate opportunity to

be heard;

That this lawsuit was initially filed by Plaintiff in the Denver District

Court, state of Colorado, under case no. 2010CV1410 and was

later removed to the United States District Court for the District of

Colorado by Defendants HealthOne of Denver, Inc., and Denver

Mid-Town Surgery, Ltd., on or about December 22, 2010, by the

filing of their Notice of Removal. The Board’s argument that

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Plaintiff should not benefit and avoid the state statutory law

privileges contained in §§ 12-36-118(10)(a)(b), §12-36.5-102(4), §

12-36.5-104(10), and 12-36.5-104(4)(b), C.R.S., because of an

involuntary removal by Defendants HealthOne of Denver, Inc., and

Denver Mid-Town Surgery, Ltd., is misplaced. Plaintiff was not the

movant on the removal of this case to the federal district court, and,

in fact, the record shows that Plaintiff wanted to prosecute his case

in the Denver District Court in the state of Colorado. It was the

Defendants HealthOne of Denver, Inc., and Denver Mid-Town

Surgery, Ltd., who made a strategic decision to remove this case to

the federal district court;

That the Second Amended Complaint and Jury Demand is the

operative pleading. The Second Amended Complaint and Jury

Demand alleges for the first time a federal claim against

Defendants HealthOne of Denver, Inc., and Denver Mid-Town

Surgery Center, Ltd., for employment discrimination and retaliation

pursuant to Title VII, 42 U.S.C. 2000e, et seq. Thus, federal

question forms the basis for subject matter jurisdiction in this court.

The Second Amended Complaint and Jury Demand also alleges

the following state law claims:

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A claim for battery against Defendant John D.

Valentine, M.D.;

A claim for negligent supervision and retention against

Defendants HealthOne of Denver, Inc., Mid-Town

Surgery Center, Ltd., and Colorado Anesthesia

Consultants; and

A claim for retaliation for reporting patient safety

concerns against Defendants HealthOne of Denver,

Inc., and Denver Mid-Town Surgery, Ltd.;

That the Second Amended Complaint and Jury Demand alleges, in

essence, that on October 13, 2009, Defendant John D. Valentine,

M.D., came to work drunk, kissed Plaintiff Robert Record

(“Plaintiff”), and twice grabbed Plaintiff’s genitals. Plaintiff

describes this case as a sexual harassment case. See page 4, first

paragraph, line one (docket no. 65), and also see Exhibit 1,

October 28, 2010, Declaration of Leslie Krzycki attached to

Plaintiff’s response (docket no. 65);

That on January 26, 2011, Plaintiff served the Board with the

subject subpoena duces tecum. See Exhibit 1 attached to the

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subject motion (docket no. 52) -copy of subpoena duces tecum;

That the subpoena duces tecum requests production from the

Board of: “All documents related to John D. Valentine, M.D.

(License Number DR-21608) and all documents related to the State

Board of Medical Examiners Case No. 2010-001548.” In sum, the

subject subpoena duces tecum seeks full access to the Board’s

investigatory files regarding John D. Valentine, M.D.;

That Rule 26(b)(1) of the Federal Rules of Civil Procedure defines

the scope of discovery as follows:

Unless otherwise limited by court order, the scope of

discovery is as follows: Parties may obtain discovery

regarding any nonprivileged matter that is relevant to

any party’s claim or defense–including the existence,

description, nature, custody, condition, and location of

any documents or other tangible things and the

identity and location of persons who know of any

discoverable matter. For good cause, the court may

order discovery of any matter relevant to the subject

matter involved in the action. Relevant information

need not be admissible at the trial if the discovery

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appears reasonably calculated to lead to the

discovery of admissible evidence. All discovery is

subject to the limitations imposed by Rule 26(b)(2)(C).

Fed. R. Civ. P. 26(b)(1). However, “a party’s right to obtain

discovery of ‘any matter, not privileged, that is relevant to the claim

or defense of a party’ . . . may be constrained where the court

determines that the desired discovery is unreasonable or unduly

burdensome given the needs of the case, the importance of the

issues at stake in the litigation, and the importance of the proposed

discovery in resolving the issues.” Simpson v. University of Colo.,

220 F.R.D. 354, 356 (D. Colo. 2004). “The Federal Rules of Civil

Procedure permit a court to restrict or preclude discovery when

justice requires in order to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or

expense. . . .” Id. See Fed. R. Civ. P. 26(b) and (c);

A given topic is relevant if it has “the mere tendency” of making any

material fact more or less probable. Fed. Deposit Ins. Corp. v.

Wise, 139 F.R.D. 168, 170 (D. Colo. 1991). See Fed. R. Evid. 401;

10.

That the parties have cited both federal and state law with respect

to the applicable privilege law that should apply in this case.

Therefore, I must first determine whether federal or state privilege

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law applies in this case.

The State of Colorado statutory privileges as outlined in §§12-36.5-

104(10), 12-36.5-104(4)(b), 12-36.5-102(4), and 12-36-

118(10)(a)(b), C.R.S., are designed to allow confidential

conversations and free and open discussion between the Board

and physician and to prevent public disclosure of such information

gathered and reports generated from such disclosure.

Typically, in federal courts, federal common law governs the

existence of privilege, unless state law supplies the rule of decision

as to an element of the claim or defense. Fed. R. Civ. 501. See

Cutting v. United States, No. 07-02053-REB-MEH, 2008 WL

1775278, at *2 (D. Colo. April 14, 2008). The Advisory Committee

Notes to Rule 501 provide that in nondiversity cases such as this,

the federal law of privilege applies. See Fed. R. Evid. 501

Committee Note (“It is also intended that the federal law of privilege

should be applied with respect to pendent [supplemental] state

claims when they arise in a federal question case.”). See also

Hancock v. Hobbs, 967 F.2d 462, 467 (11th Cir. 1992) (“We

therefore hold that the federal law of privilege [applies in a federal

question case], even if the [discovery] is relevant to a pendent

[supplemental] state law count which may be controlled by a

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contrary state law of privilege.”); Wm. T. Thompson Co. v. General

Nutrition Corp., 671 F.2d 100, 104 (3rd Cir. 1982) (noting that when

privilege issue overlaps with federal and pendent [supplemental]

claims, federal rule in favor of admissibility controls); Bethel v.

United States ex rel. Veterans Admin. Med. Center, No. 05-1336-

PSF-KLM, 2008 WL 45382, at *6 (D. Colo. Jan. 2, 2008) (“In cases

like this one, brought under the Federal Tort Claims Act, federal

common law governs the application of privilege.”) (citing Beller v.

United States, 221 F.R.D. 679, 681 (D.N.M 2003)). Lastly, in

United States v. Prouse, 945 F.2d 1017, 1024 (8th Cir. 1991), the

Eighth Circuit held that in a federal question case involving a §

1983 claim, existence of pendant [supplemental] state law claims

held not to relieve court of obligation to apply federal law of

privilege;

11.

That in this case, with the above legal principles in mind, I find that

the state statutory privileges under §§ 12-36-118(10)(a)(b), 12-

36.5-104(4)(b), 12-36.5-104(10), 12-36.5-102(4), C.R.S., do not

apply. I further find that the federal common law on privilege

applies in this case and not state law privilege. Federal law has not

recognized the specific state privileges under §§ 12-36-

118(10)(a)(b), 12-36.5-104(4)(b), 12-36.5-104(10), and 12-36.5-

102(4), C.R.S. In addition, I find that 5 U.S.C. § 552(b)(3) and 45

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C.F.R. §§ 60.1, et seq., are not applicable here. Accordingly, no

privilege applies here unless another recognized federal law

privilege is involved, such as the attorney-client privilege or work-

product privilege. See Sprague v. Thorm Americas, Inc., 129 F.3d

1355, 1369 (10th Cir. 1997). Under federal common law, the

attorney-client privilege arises (1) where legal advice of any kind is

sought, (2) from a professional legal advisor in his capacity as

such, (3) the communications relating to that purpose, (4) made in

confidence, (5) by the client, (6) are at his instance permanently.

protected, (7) from disclosure by himself or by the legal advisor, (8)

unless the protection is waived. See Williams v. Sprint United

Management, Co., No. 03-2200-JWLDJW, 2006 WL 266599, at *2

(D. Kan. Feb. 1, 2006)(unpublished). This privilege protects from

discovery communications made in confidence between the client

and attorney, but it does not protect the underlying facts contained

within those communications. Upjohn Co. v. United States, 449

U.S. 383, 395-96 (1981). To be covered by the attorney-client

privilege, a communication between a lawyer and client must relate

to legal advice or strategy sought by the client. See id. To the

extent that any documents as outlined in the Privilege Log implicate

the attorney-client privilege or the work product privilege under Fed.

R. Civ. P. 26(b)(3), then such documents are privileged from

disclosure. Lastly, I find that the Board has stated in the Privilege

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Log, with particularity, a specific federal attorney-client privilege

argument and a work product privilege argument as to documents

Bates stamped:

VAL 0286-0287; VAL 0340; VAL 0350; VAL 0351; VAL 0353;

VAL 0354-0355; VAL 0356-0357; VAL 0358-0359; VAL 0368;

VAL 396-397; VAL 0408; VAL 0409-0411; VAL 0412; VAL 0433;

VAL 0434; VAL 0435-0437; VAL 0438-0440; VAL 0448;

12.

That all documents contained in the Privilege Log are relevant, not

privileged, except for:

VAL 0286-0287; VAL 0340; VAL 0350; VAL 0351; VAL 0353;

VAL 0354-0355; VAL 0356-0357; VAL 0358-0359; VAL 0368;

VAL 396-397; VAL 0408; VAL 0409-0411; VAL 0412; VAL 0433;

VAL 0434; VAL 0435-0437; VAL 0438-0440; VAL 0448;

which are privileged under the attorney-client and work product

privileges;

13.

That Fed. R. Civ. P. 45(c)(3)(A)(iii) requires this court to quash or

modify a subpoena that “requires disclosure of privileged or other

protected matter, if no exception or waiver applies;”

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14.

That the Board has admitted in paragraph 11 of its reply (docket no.

69) that Defendant Valentine was disciplined by the Board, but not

for sexual harassment. See Exhibit 1 attached to reply (docket no.

69);

15.

That the Board has produced to Plaintiff the following documents in

response to the Plaintiff’s subpoena duces tecum: The documents

are:

Interim Cessation of Practice Agreement;

Stipulation and Final Agency Order;

Original license application (with disciplinary

questions);

1991 renewal license application (with disciplinary

questions redacted);

1993 renewal license application (with disciplinary

questions redacted);

1997 renewal license application;

1999 renewal license application;

2001 renewal license application;

2009 renewal license application.

See exhibit two attached to docket no. 52.

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16.

That the following documents outlined in the Privilege Log are peer

review committee materials included under §§ 12-36-118(10)(a)(b)

and 12-36.5-104(10), C.R.S. They are documents Bates stamped:

VAL 0001-0003; VAL 0004-0006; VAL 0007-0009; VAL 0010; VAL

0011; VAL 0012-0013.1; VAL 0014-0016; VAL 0017-0018; VAL

0019-0020; VAL 0021-0132; VAL 0133-0140; VAL 0141-0144; VAL

0145-0146; VAL 0147-0149; VAL 0150-0152; VAL 0153-0282; VAL

0283-0285; VAL 0288; VAL 0289; VAL 0290; VAL 0291-0296; VAL

0297-0305; VAL 0306; VAL 0307; VAL 0308-0309; VAL 0310; VAL

0311-0315; VAL 0316; VAL 0317-0319; VAL 0320; VAL 0321-0328;

VAL 0329; VAL 0330; VAL 0331; VAL 0332; VAL 0333-0335; VAL

0341-0342; VAL 0343-0345; VAL 0346-0347; VAL 0348-349; (*);

VAL 0360; VAL 0361; VAL 0362-0363; VAL 0364; VAL 0365; VAL

0369-0395 [Unredacted except for date of birth and social

security number]; VAL 0398-0399; VAL 0400; VAL 0401; VAL

0402; VAL 0403; VAL 0404; VAL 0405; VAL 0406; VAL 0407; VAL

408; VAL 0413; VAL 0414-0416; VAL 0417-0419; VAL 0420; VAL

0421; VAL 0422-0423; VAL 0424; VAL 0425; VAL 0426; VAL 0427;

VAL 0428; VAL 0429; VAL 0430; VAL 0431-0432; VAL 0441; VAL

0442; VAL 0443-0444; VAL 0445-0447; VAL 0449; VAL 0450; VAL

0451-0453; VAL 0454-0456; VAL 0457; VAL 0458; VAL 0459-0460;

VAL 0461; VAL 0462; VAL 0463; VAL 0464-0466; VAL 0467-0518;

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VAL 0519; VAL 0520 [Unredacted]; VAL 0521-0527; VAL 0528;

VAL 0529; VAL 0530; VAL 0531-0532; VAL 0533-0534; VAL 0535-

1164;

(*) The court notes there was no document for Bates stamp

number “VAL 0352″ submitted to the court for in camera

review.

17.

That the following documents outlined in the Privilege Log are

privileged under Attorney-Client Privilege or Work Product Privilege.

They are documents Bates stamped:

VAL 0286-0287; VAL 0340; VAL 0350; VAL 0351; VAL 0353;

VAL 0354-0355; VAL 0356-0357; VAL 0358-0359; VAL 0368;

VAL 396-397; VAL 0408; VAL 0409-0411; VAL 0412; VAL 0433;

VAL 0434; VAL 0435-0437; VAL 0438-0440; VAL 0448;

18.

That the following documents contained in the Privilege Log have

been disclosed to Plaintiff. They are documents Bates stamped:

VAL 0336-0339 [11/6/09 Agreement between Dr. John D. Valentine

and CBME]; VAL 0366 [1/26/11 Letter to DORA/Colorado Medical

Board from Paul Maxon re: CORA Request]; VAL 0367 [1/26/11

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Subpoena to DORA/Colorado Medical Board from Paul Maxon];

VAL 0369-0395 [1/28/11 Letter from Marschall Smith Paul Maxon

with attachments- Response to CORA request. Redactions include

date of birth on p. 370, disciplinary actions (C.R.S. § 12-36-118(10)

on VAL 0371, SSN on VAL 0372, disciplinary actions (C.R.S. § 12-

36-118(10)) on VAL 0373, SSN on VAL 0375, and disciplinary

actions (C.R.S. § 12-36-118(10)) on VAL 0376]; VAL 0520 [undated

Page 2 of Interim Cessation of Practice Agreement with notes

regarding hospital privileges was disclosed without handwritten

notes regarding facilities – protected by §§ 12-36-118(10), C.R.S;

12-36.5-104(10); 13-90-107(d)(III)(C), C.R.S.; 5 U.S.C. §

552(b)(3); and, 45 C.F.R §§ 60.1 et seq. ]; VAL 1165-1174

[11/19/10 Stipulation and Final Agency Order Between Colorado

Medical Board and Dr. John D. Valentine];

19.

That Defendant Colorado Anesthesia Consultants, P.C., does not

oppose the relief sought in Co-Defendant John D. Valentine’s

Motion for Protective Order (docket no. 75); and

20.

That a stipulated protective order was entered in this case on

March 4, 2011 (docket no. 63), and it will protect the concerns of all

parties and non-parties of the requested information in the subject

motion (docket no. 52). The stipulated protective order will prevent

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disclosure of any discovery obtained through this Order for the

limited purpose of this litigation only and for no other purpose. The

stipulated protective order (docket no. 63) that is already in place in

this case will serve the purpose of the state statutory privileges

while allowing the search for the truth which is the underpinning of

our system of justice. The stipulated protective order will protect

the privacy interests of any non-party personnel who may have

been discussed during the investigation and executive sessions of

the Board. It makes no sense to allow state statutory privilege law

to determine what evidence is discoverable in cases brought

pursuant to federal statute (i.e., Title VI claim). If state privilege law

controlled, then state authorities could effectively insulate

themselves from constitutional norms simply by developing

privilege doctrines that make it virtually impossible for plaintiffs to

develop the kind of information they need to prosecute their federal

claims.

ORDER

WHEREFORE, based upon these findings of fact and conclusions of law this

court ORDERS:

That Colorado Medical Board’s Motion to Modify Subpoena Duces

Tecum or for Protective Order (docket no. 52) is GRANTED IN

PART AND DENIED IN PART. This motion is GRANTED insofar

as documents Bates stamped:

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VAL 0286-0287; VAL 0340; VAL 0350; VAL 0351; VAL 0353;

VAL 0354-0355; VAL 0356-0357; VAL 0358-0359; VAL 0368;

VAL 396-397; VAL 0408; VAL 0409-0411; VAL 0412; VAL 0433;

VAL 0434; VAL 0435-0437; VAL 0438-0440; VAL 0448;

The remainder of the subject motion is DENIED. The subject

subpoena duces tecum is QUASHED consistent with Fed. R. Civ.

P. 45(c)(3)(A)(iii) as to documents Bates stamped:

VAL 0286-0287; VAL 0340; VAL 0350; VAL 0351; VAL 0353;

VAL 0354-0355; VAL 0356-0357; VAL 0358-0359; VAL 0368;

VAL 396-397; VAL 0408; VAL 0409-0411; VAL 0412; VAL 0433;

VAL 0434; VAL 0435-0437; VAL 0438-0440; VAL 0448;

The Board shall provide to the plaintiff on or before June 16, 2011,

copies of the following documents Bates stamped:

VAL 0001-0003; VAL 0004-0006; VAL 0007-0009; VAL 0010; VAL

0011; VAL 0012-0013.1; VAL 0014-0016; VAL 0017-0018; VAL

0019-0020; VAL 0021-0132; VAL 0133-0140; VAL 0141-0144; VAL

0145-0146; VAL 0147-0149; VAL 0150-0152; VAL 0153-0282; VAL

0283-0285; VAL 0288; VAL 0289; VAL 0290; VAL 0291-0296; VAL

0297-0305; VAL 0306; VAL 0307; VAL 0308-0309; VAL 0310; VAL

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0311-0315; VAL 0316; VAL 0317-0319; VAL 0320; VAL 0321-0328;

VAL 0329; VAL 0330; VAL 0331; VAL 0332; VAL 0333-0335; VAL

0341-0342; VAL 0343-0345; VAL 0346-0347; VAL 0348-349; (*);

VAL 0360; VAL 0361; VAL 0362-0363; VAL 0364; VAL 0365; VAL

0369-0395 [Unredacted except for date of birth and social

security number]; VAL 0398-0399; VAL 0400; VAL 0401; VAL

0402; VAL 0403; VAL 0404; VAL 0405; VAL 0406; VAL 0407; VAL

408; VAL 0413; VAL 0414-0416; VAL 0417-0419; VAL 0420; VAL

0421; VAL 0422-0423; VAL 0424; VAL 0425; VAL 0426; VAL 0427;

VAL 0428; VAL 0429; VAL 0430; VAL 0431-0432; VAL 0441; VAL

0442; VAL 0443-0444; VAL 0445-0447; VAL 0449; VAL 0450; VAL

0451-0453; VAL 0454-0456; VAL 0457; VAL 0458; VAL 0459-0460;

VAL 0461; VAL 0462; VAL 0463; VAL 0464-0466; VAL 0467-0518;

VAL 0519; VAL 0520 [Unredacted]; VAL 0521-0527; VAL 0528;

VAL 0529; VAL 0530; VAL 0531-0532; VAL 0533-0534; VAL 0535-

1164;

(*) The court notes there was no document for Bates stamp

number “VAL 0352″ submitted to the court for in camera

review.

All documents received shall be used consistent with the Stipulated

Protective Order (docket no. 63) entered on March 4, 2011;

That Dr. John D. Valentine’s Motion for Protective Order (docket

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no. 75) is DENIED;

That the Privilege Log and all documents included in the Privilege

Log shall be SEALED AND NOT OPENED EXCEPT BY

FURTHER ORDER OF COURT, and

That each party shall pay their own attorney fees and costs for this

motion.

Done this 26th day of May, 2011.

BY THE COURT

s/Michael J. Watanabe
MICHAEL J. WATANABE
U.S. MAGISTRATE JUDGE