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` No. CIV 17-0020 JB/WPL
`
`
`EMMA SERNA d/b/a SERNA &
`ASSOCIATES CONSTRUCTION CO., LLC,
`
`
`
`vs.
`
`MARGETTE WEBSTER; DAVID WEBSTER;
`STATE OF NEW MEXICO, U.S. Judicial
`Court Division; CLAYTON CROWLEY;
`ALEX CHISHOLM; CARL BUTKUS; CINDY
`MOLINA; ALAN MALOTT; BEATRICE
`BRICKHOUSE; BOBBY JO WALKER;
`JAMES O’NEAL; ROBERT BOB SIMON;
`ESTATE OF PAUL F. BECHT; CARL A.
`CALVERT; JOEY MOYA; AMY MAYER;
`GARCIA MADELIENE; ARTHUR PEPIN;
`MONICA ZAMORA; CHERYL ORTEGA;
`JOHN DOE #1; PAT MCMURRAY;
`MARTHA MUTILLO; SALLY GALANTER;
`NEW MEXICO CONSTRUCTION
`INDUSTRIES DIVISION; ROBERT “MIKE”
`UNTHANK; MARTIN ROMERO; AMANDA
`ROYBAL; NAN NASH and JOHN WELLS,
`
`
`
`
`Case 1:17-cv-00020-JB-JHR Document 153 Filed 09/30/17 Page 1 of 95
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF NEW MEXICO
`
`Plaintiff,
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`Defendants.
`
`
`
`MEMORANDUM OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
`PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
`
`THIS MATTER comes before the Court on: (i) the Plaintiff’s Motion [sic] District
`
`
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`Court’s Hearing of January 12, 2017, filed January 12, 2017 (Doc. 11), which the Court
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`construes as a request to refile a lien that the state district court expunged; (ii) the Plaintiff’s
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`Request Order for Injunctive Relief from Second Judicial District Court 18 U.S.C. § 1033, 1034,
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`& 1035, filed February 2, 2017 (Doc. 20), which the Court construes as a motion for injunctive
`
`relief from the Second Judicial District Court, County of Bernalillo, for the State of New
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`

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`Case 1:17-cv-00020-JB-JHR Document 153 Filed 09/30/17 Page 2 of 95
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`Mexico; (iii) the Plaintiff’s Request Order for U.S.C. 18 Dismissal of Expungement of Public
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`Records, filed February 2, 2017 (Doc. 21), which the Court construes as a motion for an order
`
`directing the Bernalillo County Clerk to “dismiss the expungement” of a lien; (iv) Defendant
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`Clayton Crowley’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1),
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`(b)(4), (b)(5), and (b)(6), filed on February 6, 2017; (v) Plaintiff’s Proof to Support Need of
`
`Injunction, filed February 8, 2017 (Doc. 24), which the Court construes as a second motion for
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`injunctive relief; (vi) the Plaintiff’s Motion for Entry of Default and Default Judgment as to
`
`Defendant Crowley, filed February 9, 2017 (Docs. 26, 27); (vii) the Plaintiff’s Motion for Entry
`
`of Default and Default Judgment as to Defendant Margette Webster, filed February 9, 2017
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`(Doc. 28); (viii) the Plaintiff’s Motion for Entry of Default and Default Judgment as to
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`Defendant David Webster, filed February 9, 2017 (Doc. 29); (ix) the Plaintiff’s Motion for Entry
`
`of Default and Default Judgment as to Defendant Alex Chisholm, filed February 9, 2017 (Doc.
`
`30); (x) the Plaintiff’s Motion for Entry of Default and Default Judgment as to Defendant Carl
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`Calvert, filed February 9, 2017 (Doc. 31); (xi) the Plaintiff’s Motion for Entry of Default and
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`Default Judgment as to Defendant Robert Simon, filed February 9, 2017 (Doc. 32);
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`(xii) Defendants Judge Monica Zamora, Judge Beatrice Brickhouse, Judge Carl Butkus, Judge
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`Alan Malott, Joey Moya, Amy Mayer, Madeline Garcia, Lynette Rodriguez1, Arthur Pepin,
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`Cheryl Ortega, James Noel, Cindy Molina, Bobby Jo Walker, and the State of New Mexico
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`(“Judicial Defendants”)’s Judicial Defendants’ Motion to Dismiss Complaint, filed February 9,
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`2017 (Doc. 33); (xiii) Defendant Calvert’s Motion of Carl A. Calvert to Dismiss Complaint, filed
`
`
`1The Plaintiff specifically lists “predicate acts” that Rodriguez committed and describes
`Rodriguez as a “proximate cause” to the allegations in this case, but chose not to list Rodriguez in the
`caption of the complaint. See Complaint Pursuant to 42 U.S.C. § 1983, 28 U.S.C. § 1343(a)(2), 28
`U.S.C. [sic] 1331, 18 U.S.C. § 1964, 27 U.S.C. § 151, 18 U.S.C. § 1341 Compensatory Damages,
`Injunctive Relief, Quantum Damages, General Damages, and Punitive Damages White Collar Crime at
`22, filed January 9, 2017 (Doc. 1)(“Complaint”). Nonetheless, the Court assumes that Serna intends to
`bring a claim against Rodriguez and thus disposes of that claim herein.
`
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`

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`Case 1:17-cv-00020-JB-JHR Document 153 Filed 09/30/17 Page 3 of 95
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`February 9, 2017 (Doc. 34); (xiv) Defendants New Mexico Construction Industries Division
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`(“CID”), Robert Unthank, Sally Galanter, Martha Murillo, Pat McMurray, Martin Romero, and
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`Amanda Roybal (“CID Defendants”)’s Joint Motion to Dismiss, filed February 10, 2017
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`(Doc. 36); (xv) Defendant Simon’s Motion for More Definitive Statement, filed February 10,
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`2017 (Doc. 38); (xvi) Defendant Judge Nan Nash’s Motion to Dismiss Complaint, filed February
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`10, 2017 (Doc. 40)2; (xvii) the Plaintiff’s Motion to Have the Honorable Browning Hear All
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`Dismissal Briefs, filed February 21, 2017 (Doc. 53), which the Court construes to be a motion
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`for hearing; (xviii) the Plaintiff’s Supplemental to Judicial Defendants Dismissal Answer, filed
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`February 23, 2017 (Doc. 58), which the Court construes to be the Plaintiff’s motion for sanctions
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`against counsel for the Judicial Defendants for failing to disclose his employment status;
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`(xix) the Plaintiff’s Objection to Dismissal of Complaint Against C.I.D. Defendants, filed on
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`February 24, 2017 (Doc. 61); (xx) Plaintiff’s Motion for Entry of Judgment on Default
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`Judgments as to all Defendants, filed March 1, 2017 (Doc. 66); (xxi) the Plaintiff’s Proof of
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`Service to Defaulted Defendants, filed March 9, 2017 (Doc. 77); (xxii) the Plaintiff’s Reply in
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`Further Support to Hear Complaint, filed March 14, 2017 (Doc. 83); (xxii) the Judicial
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`Defendants’ Motion to Strike Plaintiff’s “Reply in Further Support to Hear Complaint,” filed
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`March 14, 2017 (Doc. 84); (xxiii) the Plaintiff’s Completion of Plaintiff’s Briefings and Request
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`Entry of “Reply in Further Support to Hear Complaint,” filed March 21, 2017 (Doc. 90);
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`(xxiv) the Plaintiff’s Attorney for Judicial Defendants Made a False Statement to the Court, filed
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`March 21, 2017 (Doc. 91), which the Court construes to be Plaintiff’s second motion for
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`sanctions against counsel for the Judicial Defendants (Doc. 91); (xxv) the Plaintiff’s Waiver of
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`Service of Summons Has Been Mailed to the Websters, filed on March 23, 2017 (Doc. 92);
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`
`2For the remainder of this Memorandum Opinion and Order, the Court considers Judge
`Nash to be part of the Judicial Defendants.
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`Case 1:17-cv-00020-JB-JHR Document 153 Filed 09/30/17 Page 4 of 95
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`(xxvi) the Plaintiff’s Defendant Nash in Violation of Jurisdiction and Authority and RICO Act,
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`filed March 23, 2017 (Doc. 94), which the Court construes as the Plaintiff’s third motion for
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`injunctive relief; (xxvii) the Plaintiff’s Request: Order for Dismissal of Expungement, of
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`Mechanic’s Lien, Filed by State District Court at County Clerks Office, filed April 3, 2017
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`(Doc. 96); (xxviii) the Plaintiff’s Request Emergency Temporary Injunction on Second Judicial
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`District State Court, Albuquerque, filed April 6, 2017 (Doc. 98); (xxix) the Judicial Defendants’
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`Motion to Impose Filing Restrictions on Plaintiff, filed April 6, 2017 (Doc. 99); (xxx) the
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`Plaintiff’s Complaint to Judge Browning: Judge Nash in Noncompliance of Lawsuit in Federal
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`Court and Holding an Arbitration Hearing to Change a 2 Yr. Old Award, filed April 17, 2017
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`(Doc. 104), which the Court construes as the Plaintiff’s fourth motion for injunctive relief;
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`(xxxi) the Plaintiff’s Judge Nash’s Ruling in State District Court Without Jurisdiction and
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`Authority, filed April 19, 2017 (Doc. 105), which the Court construes as another motion for
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`injunctive relief; (xxxii) the Plaintiff’s Motion for Entry of Default and Default Judgment as to
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`Defendant John Wells, filed May 3, 2017 (Doc. 115); (xxxiii) the Plaintiff’s motions to amend
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`complaint, filed January 10, February 9, February 15, February 24, March 17, and March 23,
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`2017 (Docs. 7, 8, 25, 47, 61, 87, 93, 94); (xxxiv) the Plaintiff’s Second Proposed Findings and
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`Recommended Disposition, filed May 4, 2017 (Doc. 118)(“Second PFRD”), which addresses all
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`of the above motions (Doc. 118); (xxxv) the Defendants David and Margette Webster’s Motion
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`to Dismiss Complaint, filed May 8, 2017 (Doc. 120); (xxxvi) the Plaintiff’s Request to the
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`Honorable Judge Browning: Temporary Restraining Order Filed on State District Court and
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`Evidentiary Hearing and Recusal of the Judge Lynch for Fraud Upon the Court, filed May 8,
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`2017 (Doc. 121); (xxxvii) the Plaintiff’s Request to Judge Browning: Emergency Order to Cease
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`and Desist Collections on False State District Court Award,” filed on May 11, 2017, which the
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`Case 1:17-cv-00020-JB-JHR Document 153 Filed 09/30/17 Page 5 of 95
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`Court construes as another motion for injunctive relief (Doc. 123); (xxxviii) the Plaintiff’s
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`Objection to Dismissal of Complaint, filed May 12, 2017 (Doc. 125), which the Court construes
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`as a motion for discovery and for sanctions; (xxxix) the Plaintiff’s Emergency Request from
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`Judge Browning: Order to Bernalillo County Sheriff’s Department to Return Serna’s Funds, filed
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`May 12, 2017 (Doc. 126), which the Court construes as a motion for injunctive relief (Doc. 126);
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`(xl) the Plaintiff’s Relief From Default Judgment Under Rule 55 and 60(b) as per Defendant
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`Wells, filed May 15, 2017 (Doc. 127); (xli) the Plaintiff’s Relief from Default Judgment Under
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`Rule 55 and 60(b) as per Defendant Simon, filed May 15, 2017 (Doc. 128); (xlii) the Plaintiff’s
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`Relief from Default Judgment Under Rule 55 and 60(b) as to Defendant Chisholm, filed May 15,
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`2017 (Doc. 129); the Plaintiff’s Relief from Default Judgment Under Rule 55 and 60(b) as to
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`Defendant Webster, filed May 15, 2017 (Doc. 130); (xliii) the Plaintiff’s for default judgment as
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`to Margette Webster, filed on May 15, 2017 (Doc. 131); Relief from Default Judgment Under
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`Rule 55 and 60(b) as to Defendant Crowley, filed May 15, 2017 (Doc. 132); (xliv) the Plaintiff’s
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`Corrections to Defendant’s Codes per the Courts Entry of May 04, 2017, filed May 30, 2017,
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`which the Court construes as a motion to amend (Doc. 134); (xlv) the Plaintiff’s Objections to
`
`the Second Proposed Findings and Recommended Disposition and Grant Judgment in Favor of
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`the Plaintiff on the Findings, filed May 30, 2017 (Doc. 135)(“Objections”); (xlvi) the Plaintiff’s
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`Objections and Answers to Proposed Findings and Recommendations and Motion to Withdraw
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`the Limited Liability Company Until Counsel is Procured, filed June 13, 2017 (Doc. 137);
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`(xlvii) the Plaintiff’s Request for this Objection as Timely on Objection to Dismissal of
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`Defendant Chisholm and Accept His Default Judgment, filed June 15, 2017 (Doc. 138), which
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`the Court construes as another motion for default judgment; (xlviii) Defendant Simon’s Motion
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`to Strike and Dismiss Plaintiff’s Compliant Pursuant to Fed. R. Civ. P. 12 (e), filed July 24, 2017
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`Case 1:17-cv-00020-JB-JHR Document 153 Filed 09/30/17 Page 6 of 95
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`(Doc. 139); (xlix) the Plaintiff’s Request Cancellation of Defendant Simon’s Unscrupulous
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`Motion to Strike Complaint, filed July 27, 2017 (Doc. 140); (l) the Plaintiff’s Motion for Leave
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`to Amend Complaint and Add Additional Parties Plus Relief and Memorandum of Law in
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`Support, filed July 31, 2017 (Doc. 141); (li) the Plaintiff’s Defendant Webster in Violation of
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`Rule 5 Serving Pleadings and Other Papers on All Parties, filed August 10, 2017 (Doc. 144),
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`which the Court construes as another motion for injunctive relief; (lii) the Plaintiff’s Objection to
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`Defendant Simon’s Motion to Strike and Dismiss Plaintiff’s Complaint, filed August 11, 2017
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`(Doc. 145), which the Court construes as a motion for sanctions; and (liii) the Plaintiff’s
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`Addendum Request: Office of the Clerks to Mail Defendant’s [sic] Websters Copies of Court
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`Pleadings Due to “Threats” on Plaintiff, filed August 18, 2017 (Doc. 146), which the Court
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`construes as another motion for injunctive relief. Because the Court agrees with the conclusion
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`of the Honorable William P. Lynch, United States Magistrate Judge for the District of New
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`Mexico, the Court will overrule the Plaintiff’s Objections and adopt the Second PFRD; allow
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`Serna ten days to file an amended complaint as to Defendants Alex Chisholm, the Estate of Paul
`
`Becht, and Robert Simon; deny the Motion for Hearing; grant the Defendants David Webster and
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`Margette Webster’s Motion to Dismiss; deny Serna’s seven Motions for Injunctive Relief and
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`for Sanctions (Docs. 121, 123, 125, 126, 140, 144, 145, 146); deny Serna’s eight Motions for
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`Default Judgment; deny Serna’s Motions to Amend; dismiss, at Serna’s request, Defendants
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`Cindy Molina, Lynette Rodriguez, Madeline Garcia, Sally Galanter, and Ari Biernoff; deny
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`Robert Simon’s Motion to Strike and Dismiss; and order Serna to show cause, in writing, within
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`ten days from the date of entry of this Order, why filing restrictions should not be imposed
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`against her.
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`Case 1:17-cv-00020-JB-JHR Document 153 Filed 09/30/17 Page 7 of 95
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`FACTUAL AND PROCEDURAL BACKGROUND
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`
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`The Second PFRD thoroughly lays out factual and procedural history. The Court will not
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`repeat the background.
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`LAW REGARDING PLEADING REQUIREMENTS
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`
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`The decision to strike a pleading or to dismiss an action without prejudice for failure to
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`comply with Rule 8 of the Federal Rules of Civil Procedure is within the district court’s sound
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`discretion. See Kuehl v. FDIC, 8 F.3d 905, 908 (1st Cir. 1993); Atkins v. Northwest Airlines,
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`Inc., 967 F.2d 1197, 1203 (8th Cir. 1992); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988).
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`To state a claim for relief, rule 8(a) requires a plaintiff’s complaint to contain “(1) a short and
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`plain statement of the grounds upon which the court’s jurisdiction depends, . . . (2) a short and
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`plain statement of the claim showing that [she] is entitled to relief, and (3) a demand for
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`judgment for the relief [he or she] seeks.” Fed. R. Civ. P. 8(a). Although the Court is to construe
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`pro se pleadings liberally, a pro se plaintiff must follow the rules of federal and appellate
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`procedure. See Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
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`
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`A pro se complaint is subject to dismissal under rule 8(a) if it is “incomprehensible.”
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`Olguin v. Atherton, 215 F.3d 1337 (10th Cir. 2000); Carpenter v. Williams, 86 F.3d 1015, 1016
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`(10th Cir. 1996). Rule 8(a)’s purpose is to require plaintiffs to state their claims intelligibly so as
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`to give fair notice of the claims to opposing parties and the court. See Mann v. Boatright, 477
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`F.3d 1140, 1148 (10th Cir. 2007); Monument Builders of Greater Kansas City, Inc. v. Am.
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`Cemetery Ass’n of Kansas, 891 F.2d 1473, 1480 (10th Cir. 1989). Imprecise pleadings
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`undermine the complaint’s utility and violate rule 8’s purpose. See Know v. First Security Bank
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`of Utah, 196 F.2d 112, 117 (10th Cir. 1952). Rambling and incomprehensible filings that bury
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`material allegations in “a morass of irrelevancies” do not meet rule 8(a)’s pleading requirement
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`Case 1:17-cv-00020-JB-JHR Document 153 Filed 09/30/17 Page 8 of 95
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`of a “short and plain statement.” Mann v. Boatright, 477 F.3d at 1148. See Ausherman v.
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`stump, 643 F.2d 715, 716 (10th Cir. 1981)(describing a sixty-three-page complaint as “prolix”
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`and concluding that it violated rule 8(a)’s “short and plain” statement requirement).
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`
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`Moreover, courts should deny leave to amend when it appears that the plaintiff is
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`attempting “to make the complaint ‘a moving target[.]’” Minter v. Prime Equipment Co., 451
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`F.3d 1196, 1206 (10th Cir. 2006)(quoting Viernow v. Euripides Dev. Corp., 157 F.3d 785, 800
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`(10th Cir. 1988)). It is unreasonable to expect the court or the defendants continually to have to
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`adapt as the plaintiff develops new theories or locates new defendants. There comes a point when
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`even a pro se plaintiff has had sufficient time to investigate and to properly frame his or her
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`claims against specific defendants. See Minter v. Prime Equipment Co., 451 F.3d at 1206.
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`LAW REGARDING MOTIONS TO AMEND
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`
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`“While Rule 15 governs amendments to pleadings generally, Rule 16 of the Federal
`
`Rules of Civil Procedure governs amendments to scheduling orders.” Bylin v. Billings, 568 F.3d
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`1224, 1231 (10th Cir. 2009)(citing Fed. R. Civ. P. 16(b)). When a court has not entered a
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`scheduling order in a particular case, rule 15 governs amendments to the plaintiff’s complaint.
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`See Fed. R. Civ. P. 15. When a scheduling order governs the case’s pace, however, amending the
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`complaint after the deadline for such amendments implicitly requires an amendment to the
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`scheduling order, and rule 16(b)(4) governs changes to the scheduling order. See Bylin v.
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`Billings, 568 F.3d at 1231.
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`
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`Rule 15(a) of the Federal Rules of Civil Procedure provides:
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`(1) Amending as a Matter of Course. A party may amend it pleading once as a
`matter of course within:
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`(A)
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`21 days after serving it, or
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`Case 1:17-cv-00020-JB-JHR Document 153 Filed 09/30/17 Page 9 of 95
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`(B)
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`if the pleading is one to which a responsive pleading is required, 21
`days after service of a responsive pleading or 21 days after service of a
`motion under rule 12(b), (e), or (f), whichever is earlier.
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`(2) Other Amendments. In all other cases, a party may amend its pleading only
`with the opposing party’s written consent or the court’s leave. The court
`should freely give leave where justice so requires.
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`Fed. R. Civ. P. 15(a)(bold and italics in original). Further, the local rules provide that, with
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`respect to motions to amend a pleading, “[a] proposed amendment to a pleading must accompany
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`the motion to amend.” D.N.M.LR-Civ. 15.1.
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`Under rule 15(a), the court should freely grant leave to amend a pleading where justice so
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`requires. See In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. 571, 579-80 (D.N.M.
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`2010)(Browning, J.); Youell v. Russell, No. CIV 04-1396 JB/WDS, 2007 WL 709041, at *1-2
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`(D.N.M. Feb. 14, 2007)(Browning, J.); Burleson v. ENMR-Plateau Tele. Coop., No. CIV 05-
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`0073 JB/KBM, 2005 WL 3664299, at *1-2 (D.N.M. Sept. 23, 2005)(Browning, J.). The Supreme
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`Court has stated that, in the absence of an apparent reason such as “undue delay, bad faith or
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`dilatory motive . . . [,] repeated failure to cure deficiencies by amendments previously allowed,
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`undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the
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`amendment, etc.,” leave to amend should be freely given. Fomen v. Davis, 371 U.S. 178, 182
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`(1962). See Curley v. Perry, 246 F.3d 1278, 1284 (10th Cir. 2001). In re Thornburg Mortg., Inc.
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`Sec. Litig., 265 F.R.D. at 579-80.
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`
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`A court should deny leave to amend under rule 15(a) where the proposed “amendment
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`would be futile.” Jefferson Cty. Sch. Dist. v. Moody’s Investor’s Serv., 175 F.3d 848, 859 (10th
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`Cir. 1999). See In re Thornburg Mortg., Inc. Sec. Litig., 265 F.R.D. at 579-80. An amendment
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`is “futile” if the pleading “as amended, would be subject to dismissal.” In re Thornburg Mortg.,
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`Inc. Sec. Litig., 265 F.R.D. at 579-80 (citing TV Commc’ns Network, Inc. v. Turner Network
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`Case 1:17-cv-00020-JB-JHR Document 153 Filed 09/30/17 Page 10 of 95
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`Television, Inc., 964 F.2d 1022, 1028 (10th Cir. 1992)). A court may also deny leave to amend
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`“upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory
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`motive, [or] failure to cure deficiencies by amendments previously allowed.” In re Thornburg
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`Mortg., Inc. Sec. Litig., 265 F.R.D. at 579 (quoting Frank v. U.S. W., Inc., 3 F.3d 1357, 1365-66
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`(10th Cir. 1993)). See Youell v. Russell, 2007 WL 709041, at *2-3; Lymon v. Aramark Corp.,
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`No. CIV 08-0386 JB/DJS, 2009 WL 1299842 (D.N.M. Feb. 4, 2009)(Browning, J.). The Tenth
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`Circuit has also noted:
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`It is well settled in this circuit that untimeliness alone is a sufficient reason to
`deny leave to amend, see Woolsey v. Marion Laboratories, Inc., 934 F.2d 1452,
`1462 (10th Cir. 1991); Las Vegas Ice & Cold Storage Co. v. Far West Bank, 893
`F.2d 1182, 1185 (10th Cir. 1990); First City Bank v. Air Capitol Aircraft Sales,
`820 F.2d 1127, 1133 (10th Cir. 1987), especially when the party filing the motion
`has no adequate explanation for the delay, Woolsey, 934 F.2d at 1462.
`Furthermore, “[w]here the party seeking amendment knows or should have
`known of the facts upon which the proposed amendment is based but fails to
`include them in the original complaint, the motion to amend is subject to denial.”
`Las Vegas Ice, 893 F.2d at 1185.
`
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`Frank v. U.S. W., Inc., 3 F.3d at 1365-66. The longer the delay, “the more likely the motion to
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`amend will be denied, as protracted delay, with its attendant burdens on the opponent and the
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`court, is itself a sufficient reason for the court to withhold permission to amend.” Minter v.
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`Prime Equip. Co., 451 F.3d at 1205 (citing Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st
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`Cir. 2004)). Undue delay occurs where the plaintiff’s amendments “make the complaint ‘a
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`moving target.’” Minter v. Prime Equip. Co., 451 F.3d at 1206 (quoting Viernow v. Euripides
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`Dev. Corp., 157 F.3d at 799-800). “[P]rejudice to the opposing party need not also be shown.”
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`Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d at 1185. “Where the party seeking
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`amendment knows or should have known of the facts upon which the proposed amendment is
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`based but fails to include them in the original complaint, the motion to amend is subject to
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`denial.” Las Vegas Ice & Cold Storage Co. v. Far W. Bank, 893 F.2d at 1185 (quoting State
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`Case 1:17-cv-00020-JB-JHR Document 153 Filed 09/30/17 Page 11 of 95
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`Distribs., Inc. v. Glenmore Distilleries Co., 738 F.2d 405 (10th Cir. 1984)). Along the same
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`vein, the court will deny amendment if the party learned of the facts upon which its proposed
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`amendment is based and nevertheless unreasonably delayed in moving to amend its complaint.
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`See Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994)(noting motion to
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`amend filed “was not based on new evidence unavailable at the time of the original filing”).
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`Refusing leave to amend is generally justified only upon a showing of undue delay,
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`undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies
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`by amendments previously allowed, or futility of amendment. See Castleglen, Inc. v. Resolution
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`Trust Corp., 984 F.2d 1571, 1585 (10th Cir. 1993)(citing Foman v. Davis, 371 U.S. at 182).
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`Again, the matter is left to the court's discretion. Frank v. U.S. W., Inc., 3 F.3d at 1365-66. See
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`Duncan v. Manager, Dep't of Safety, City & Cnty. of Denver, 397 F.3d 1300, 1315 (10th Cir.
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`2005)(quoting Frank v. U.S. West, Inc., 3 F.3d at 1365-66, and stating that resolving the issue
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`whether to allow a plaintiff to file a supplement to his complaint is “well within the discretion of
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`the district court”). “The . . . Tenth Circuit has emphasized that ‘[t]he purpose of [rule 15(a) ] is
`
`to provide litigants the maximum opportunity for each claim to be decided on its merits rather
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`than on procedural niceties.’” B.T. ex rel. G.T. v. Santa Fe Pub. Schs., 2007 WL 1306814, at *2
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`(D.N.M. 2007)(Browning, J.)(quoting Minter v. Prime Equip. Co., 451 F.3d 1196, 1204 (10th
`
`Cir. 2006)). “Specifically, the . . . Tenth Circuit has determined that district courts should grant
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`leave to amend when doing so would yield a meritorious claim.” Burleson v. ENMR-Plateau
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`Tel. Co-op., 2005 WL 3664299 at *2 (D.N.M. 2005)(Browning, J.)(citing Curley v. Perry, 246
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`F.3d 1278, 1284 (10th Cir. 2001)).
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`LAW REGARDING ELEVENTH AMENDMENT IMMUNITY
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`The Eleventh Amendment provides: “The Judicial power of the United States shall not be
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`construed to extend to any suit in law or equity, commenced or prosecuted against one of the
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`United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
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`Const. amend. XI. The Supreme Court has construed Eleventh Amendment immunity to prohibit
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`federal courts from entertaining suits against states brought by their own citizens or citizens of
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`another state without their consent. See Port Auth. Trans–Hudson Corp. v. Feeney, 495 U.S.
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`299, 304 (1990). State agencies and state officials are likewise provided immunity as “an arm of
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`the state.” Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 280–81 (1977).
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`Exceptions to a state’s Eleventh Amendment immunity are few. See, e.g., Ex parte
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`Young, 209 U.S. 123, 159–60 (1908)(“If the act which the state attorney general seeks to enforce
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`be a violation of the Federal Constitution, the officer, in proceeding under such enactment,
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`comes into conflict with the superior authority of that Constitution, and he is in that case stripped
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`of his official or representative character and is subjected in his person to the consequences of his
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`individual conduct. The state has no power to impart to him any immunity from responsibility to
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`the supreme authority of the United States.”). A state may, however, voluntarily waive its
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`immunity. See Edelman v. Jordan, 415 U.S. 651, 673 (1974). Congress may also abrogate
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`Eleventh Amendment immunity pursuant to Section 5 of the Fourteenth Amendment to the
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`Constitution of the United States, where the statute explicitly manifests Congress' intent to do so.
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`See Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Congress did not, however, abrogate
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`Eleventh Amendment immunity when enacting 42 U.S.C. § 1983. See Quern v. Jordan, 440
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`U.S. 332, 340 (1979). Consequently, Eleventh Amendment immunity extends to defendants
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`under that statute, and claims against the state pursuant to § 1983 in the federal courts are barred
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`as a matter of law.
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`Although not properly characterized as an exception to a state's Eleventh Amendment
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`immunity, the doctrine that the Supreme Court announced in Ex parte Young, 209 U.S. at 128,
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`allows for suits against state officials under certain circumstances. See Elephant Butte Irrigation
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`Dist. of N.M. v. Dep't of the Interior, 160 F.3d 602, 607-08 (10th Cir. 1998)(“The Ex parte
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`Young doctrine is not actually an exception to Eleventh Amendment state immunity because it
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`applies only when the lawsuit involves an action against state officials, not against the state.”).
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`In Ex parte Young, the Supreme Court held that the Eleventh Amendment bar generally does not
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`apply in federal court to state officials defending against suit which seeks only prospective relief
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`from violations of federal law. See Ex parte Young, 209 U.S. at 28. The Ex parte Young
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`doctrine allows suit to proceed against defendant state officials if the following requirements are
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`met: (i) the plaintiffs are suing state officials rather the state itself; (ii) the plaintiffs have alleged
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`a non-frivolous violation of federal law; (iii) the plaintiffs seek prospective equitable relief rather
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`than retroactive monetary relief from the state treasury; and (iv) the suit does not implicate
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`special sovereignty interests. See Elephant Butte Irrigation Dist. of N.M. v. Dep’t of the Interior,
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`160 F.3d at 609.
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`LAW REGARDING JUDICIAL IMMUNITY
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`“[J]udges of courts of superior or general jurisdiction are not liable to civil actions for
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`their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have
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`been done maliciously or corruptly.” Stump v. Sparkman, 435 U.S. 349, 355–56 (1978). That
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`same immunity continues even if the judge’s “exercise of authority is flawed by the commission
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`of grave procedural errors.” Stump v. Sparkman, 435 U.S. at 359.
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`The Supreme Court has emphasized that a judge's immunity from § 1983 liability “is
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`overcome in only two sets of circumstances. First, a judge is not immune from liability for
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`nonjudicial acts, i.e., actions not taken in the judge's judicial capacity. Second, a judge is not
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`immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.”
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`Mireles v. Waco, 502 U.S. 9, 11–12 (1991)(citations omitted). The Supreme Court has also held
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`that absolute judicial immunity was not affected or abolished “by § 1983, which makes liable
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`‘every person’ who under color of law deprives another person of his civil rights.” Pierson v.
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`Ray, 386 U.S. 547, 554 (1967), overruled in part on other grounds by Harlow v. Fitzgerald, 457
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`U.S. 800 (1982).
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`The Tenth Circuit has also recognized that “officials in administrative hearings can claim
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`the absolute immunity that flows to judicial officers if they are acting in a quasi-judicial
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`fashion.” Guttman v. Khalsa, 446 F.3d 1027, 1033 (2006)(citing Butz v. Economou, 438 U.S. at
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`514, 98 S. Ct. 2894). For an official at an administrative hearing to enjoy absolute immunity,
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`“(a) the officials' functions must be similar to those involved in the judicial process, (b) the
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`officials' actions must be likely to result in damages lawsuits by disappointed parties, and (c)
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`there must exist sufficient safeguards in the regulatory framework to control unconstitutional
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`conduct.” Guttman v. Khalsa, 446 F.3d at 1033 (quoting Horwitz v. State Bd. of Med. Examr's,
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`822 F.2d 1508, 1513 (10th Cir. 1987)(“Horwitz”)(internal quotation marks omitted)).
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`In Guttman v. Khalsa, a doctor who suffered from depression and post-traumatic stress
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`disorder appeared before the Impaired Physicians Committee of the New Mexico Board of
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`Medical Examiners to respond to complaints about his professional conduct. See 446 F.3d at
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`1030. The Committee in Guttman v. Khalsa issued a “Notice of Contemplated Action and an
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`Order of Summary Suspension” of the doctor's medical license based on alleged mental illness
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`and lying to the Committee. 446 F.3d at 1030. The New Mexico Board of Medical Examiners
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`then held a hearing, during which one of the defendants acted as Administrative Prosecutor. See
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`446 F.3d at 1030. The New Mexico Board of Medical Examiners in Guttman v. Khalsa revoked
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`the doctor's medical license pursuant to its statutory authority to do so. See 446 F.3d at 1030.
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`The doctor in Guttman v. Khalsa appealed the decision to the Seventh Judicial District of
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`New Mexico. See 446 F.3d at 1030. The Seventh Judicial District of New Mexico denied the
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`appeal, and the doctor then appealed to the Court of Appeals of New Mexico. See 446 F.3d at
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`1030. After the Court of Appeals of New Mexico affirmed, the doctor filed a petition for
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`certiorari with the Supreme Court of New Mexico. See 446 F.3d at 1030. Before the Supreme
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`Court of New Mexico could act on the petition, the doctor filed a lawsuit in federal court,
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`alleging, among other things, violations of his constitutional rights. See 446 F.3d at 1030.
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`The Tenth Circuit concluded that the Administrative Prosecutor and the individual who
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`presided over the three-day hearing in front of the New Mexico Board of Medical Examiners
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`enjoyed absolute immunity. See Guttman v. Khalsa, 446 F.3d at 1032. The basis for the hearing
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`officer's immunity in Guttman v. Khalsa was that he had served a quasi-judicial function. See
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`446 F.3d at 1032.
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`The Tenth Circuit in Guttman v. Khalsa also relied on Horwitz. See 822 F.2d at 1508. In
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`Horwitz, the Tenth Circuit concluded that members of the State Board of Medical Examiners for
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`the State of Colorado enjoyed absolute immunity for actions it took in filing a formal complaint
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`against a doctor, and in temporarily suspending his right to practice medicine pending
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`investigations and hearings. See 822 F.2d at 1510, 1515. The Tenth Circuit reasoned that the
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`defendant Board members were performing adjudicatory and prosecutorial functions. See 822
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`F.2d at 1515. The Tenth Circuit also noted:
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`There exists a strong need to insure that individual Board members perform their
`functions for the p