Ashford et al v. Hendrix et al

Filing 105

MEMORANDUM AND ORDER - Plaintiffs' Motion for Leave to File Rule 59 and Rule 60 Motion and Brief to Alter or Amend, Filing 94 , is denied. Plaintiffs' Motion for Recusal of the Entire Panel of Judges in Nebraska, Filing 97 , is denied. This matter is referred to the Magistrate Judge for case progression. Ordered by Judge Brian C. Buescher. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
TIMOTHY L. ASHFORD, and TIMOTHY L.
ASHFORD, PC LLO;
Plaintiffs,
8:20-CV-36
vs.
DOUGLAS COUNTY,

MEMORANDUM AND ORDER

Defendant.
I. INTRODUCTION
This case involves a matter where Ashford and his law firm initially sued Douglas County
Court Judge Marcina Hendrix, along with the State of Nebraska, Douglas County, and others.
Ashford filed this lawsuit after Judge Hendrix reduced Ashford’s request for attorneys’ fees on a
probate matter he was handling and then allegedly filed an ethics complaint against Ashford
regarding his conduct in the case. Filing 1 at 9-10, 21. The Court previously dismissed Judge
Hendrix and the State of Nebraska after they filed immediate motions to dismiss. Douglas County
did not join the motion to dismiss and is now the only remaining defendant. See Filing 23. After
the dismissal, Ashford has repeatedly tried to amend this lawsuit to include numerous additional
defendants, including the Douglas County Public Defender and six Nebraska state court judges;
the Court has denied Ashford’s repeated motions to amend to add these parties. See Filing 68;
Filing 76; Filing 84.
This matter comes before the Court on Plaintiffs’1 Motion for Leave to File Rule 59 and
Rule 60 Motion and Brief to Alter or Amend, Filing 94, and Motion for Recusal of the Entire Panel

The Court refers to both Timothy L. Ashford and Timothy L. Ashford, PC LLO collectively as either “Plaintiffs” or
“Ashford.”
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of Judges in Nebraska. Filing 97. The motions filed by Plaintiffs include a fourth motion for recusal
on the same grounds previously brought and rejected by the Court. Plaintiffs also file a motion that
the Court generously construes to be a motion to reconsider a decision made by this Court nearly
a year ago.
Plaintiffs filed their motions after this Court “require[d] Plaintiffs to seek leave to file any
subsequent motion pertaining to amendment or recusal” after Plaintiffs continually made repetitive
motions. Filing 84 at 1-2. The Court required that to obtain leave, “Plaintiffs must plausibly
articulate to the Court that the Rule 60(b) standard is met” because the Court had already
(repeatedly) ruled on recusal and amendment.2 Filing 84 at 1-2.
Plaintiffs’ present motions do not meet the Rule 60(b) standard. Further, Plaintiffs moved
for recusal for a fourth time without seeking leave, which is directly contrary to this Court’s prior
order. The merits of the motions made by Plaintiffs have already been repeatedly ruled upon and
rejected by this Court. As discussed below, the Court denies both motions.
II. DISCUSSION
In support of Plaintiffs’ motion, Plaintiffs represent to this court that the Rule 60(b)
standard is met because of fraud, misrepresentation, and misconduct. Filing 95. Plaintiffs’ motions
have no merit and are denied.
A. Recusal
Plaintiffs file a fourth motion to recuse the undersigned judge and “the entire panel of the
United States District Court for the District of Nebraska.” Filing 94. Ashford previously filed this
same motion and made the same arguments. See Filing 54 (recusal motion); Filing 55 (brief

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A motion for reconsideration of a nonfinal order should be construed as a Rule 60(b) motion. Broadway v. Norris,
193 F.3d 987, 989 (8th Cir. 1999).

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supporting recusal motion); Filing 70 (brief seeking recusal); Filing 82 (motion seeking
reconsideration of denial of motion for recusal).
In violation of this Court’s prior order, Ashford filed a fourth motion for recusal making
no new arguments and offering no new evidence in support of recusal. Indeed, Ashford admits to
filing the same recusal motion previously filed when he states that he filed “a shortened version of
the previous motion.” Filing 98 at 11. As such, the Court stands by and incorporates its prior orders
denying Plaintiffs’ motion for recusal.
B. Rule 60(b) Relief from a Final Order Based on Judicial Immunity and Fraud
Plaintiffs filed a motion asking the Court to alter or amend its prior orders based on both
disagreement with this Court’s ruling on judicial immunity and alleged fraud perpetrated by Judge
Hendrix and the Office for Discipline. See Filing 95. Plaintiffs’ motion has no merit and is denied.
Plaintiffs first argue the Court should allow them to amend the Complaint because judicial
immunity does not apply. Filing 95 at 1-3, 10-15. Plaintiffs next allege former defendant Hendrix
committed fraud and also rehash the same arguments about Judge Hendrix previously addressed
by the Court. Filing 95 at 4-10. Finally, Plaintiffs argue the Office for Discipline committed fraud.
Filing 95 at 7-10, 15-18. The Court first examines Plaintiffs’ judicial immunity argument under
Rule 60(b)(6) before addressing Rule 60(b)(3)’s application to the allegations of fraud against
Judge Hendrix and the Office for Discipline.
1. Judicial Immunity
Plaintiffs argue the Court should grant leave to amend because, contrary to the Court’s
prior finding, judicial immunity is inapplicable to the present case, particularly as it relates to
former defendant Hendrix. Filing 95 at 1-3, 10-15. Under Fed. R. Civ. P. 60(b)(6), the Court may
reconsider its prior order on judicial immunity and relieve Plaintiffs from that order if there is a

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“reason that justifies relief.” “Under Rule 60(b)(6), relief is only available ‘where exceptional
circumstances have denied the moving party a full and fair opportunity to litigate his claim and
have prevented the moving party from receiving adequate redress.’” Holmes v. United States, 898
F.3d 785, 792 (8th Cir. 2018) (quoting Harley v. Zoesch, 413 F.3d 866, 871 (8th Cir. 2005)).
Exceptional circumstances are not present here. Plaintiffs have previously addressed
judicial immunity numerous times, and the Court has ruled on that argument multiple times. See,
e.g., Filing 23; Filing 48. The Court is unpersuaded by Plaintiffs’ argument that judicial immunity
is inapplicable when a judge does not use official letterhead to file a judicial complaint. See Filing
95 at 3-10. As previously noted,
[T]he Neb. Rev. Code of Judicial Conduct notes that “[t]aking action to address
known misconduct is a judge’s obligation.” § 5-302.15, cmt 1. Submitting a bar
complaint is an “action to address known misconduct” and such activity is therefore
within the scope of Hendrix’s employment as a judicial officer.
...
[J]udicial immunity applies “in all but two narrow sets of circumstances.” Id.
(quoting Schottel v. Young, 687 F.3d 370, 373 (8th Cir. 2012). “First, a judge is not
immune from liability for nonjudicial actions, i.e., actions not taken in the judge’s
judicial capacity. Second, a judge is not immune for actions, though judicial in
nature, taken in the complete absence of all jurisdiction.” Id. (quoting Schottel, 687
F.3d at 373). As discussed in the preceding section, Hendrix’s alleged actions of
signing orders and submitting a bar complaint, both related to a pending
guardianship case, were undertaken within the scope of her judicial capacity. And,
Ashford does not argue and the Court does not see any reason Hendrix’s actions
were taken without jurisdiction. See Neb. Rev. Stat. § 24-517 (noting that Nebraska
county courts have “[e]xclusive original jurisdiction in all matters relating to the
guardianship of a person”).
The Court reaffirms its prior rulings on this matter and will not allow leave to amend on this basis.
2. Former Defendant Hendrix’s Alleged Fraud
Plaintiffs next argue former defendant Hendrix committed fraud and reassert the same
arguments about Judge Hendrix previously addressed by the Court. Filing 95 at 4-10. Specifically,

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Plaintiffs posit that Judge Hendrix “mailed only one out of the seven orders ($8,265) in PR 14
1483 as an anonymous bar complaint, without writing a detailed letter of complaint or sending the
other six previous orders in the amount of $8,641.57 to the Office for Counsel for Discipline.”
Filing 95 at 2. Plaintiffs argue that sending only one of seven orders equates to fraud. Filing 95 at
4. Plaintiffs also allege Judge Hendrix’s failure to submit a grievance on official judicial letterhead
is fraud. Filing 95 at 4. Plaintiffs reiterate these allegedly fraudulent actions throughout their brief
and note that Judge Hendrix “is not an honest judge abiding by the rules of judicial conduct.”
Filing 95 at 6.
“Motions for reconsideration serve a limited function: to correct manifest errors of law or
fact or to present newly discovered evidence.” Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 721
(8th Cir. 2010) “It is within the trial court’s discretion to determine whether the Rule 60(b)(3) test
has been met.” E.F. Hutton & Co. v. Berns, 757 F.2d 215, 217 (8th Cir. 1985). Pursuant to Fed. R.
Civ. P. 60(b)(3), the Court may reconsider its prior order denying leave to amend and relieve
Plaintiffs from that order if fraud was perpetrated by an opposing party. In order to succeed on
their Rule 60(b)(3) motion, Plaintiffs must show, “with clear and convincing evidence, that the
opposing party engaged in a fraud or misrepresentation that prevented [Plaintiffs] from fully and
fairly presenting [their] case.” United States v. Metro. St. Louis Sewer Dist., 440 F.3d 930, 935
(8th Cir. 2006).
As an initial matter, Plaintiffs’ claims of fraud against Judge Hendrix are the same fraud
claims alleged in the Complaint. See Filing 1 at 29-30. This alleged fraud was known to Plaintiffs
prior to their filing of this lawsuit and did not prevent them from presenting their case. See Metro.
St. Louis Sewer Dist., 440 F.3d at 936 (affirming district court’s denial of a Rule 60(b)(3) motion
because the undisclosed evidence serving as the basis for the fraud claim was within the movant’s

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possession the entire time). Because Plaintiffs knew of the alleged facts underlying their claims of
fraud against Judge Hendrix prior to the time of filing, such alleged facts are not “newly
discovered” and cannot be the basis for reconsideration of the Court’s rulings on those fraud
allegations.
Further, to amend and plead fraud, Plaintiffs must “state with particularity the
circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). This means that “the complaint
must set forth the ‘who, what, when, where, and how’ surrounding the alleged fraud.’” E-Shops
Corp. v. U.S. Bank Nat. Ass’n, 678 F.3d 659, 663 (8th Cir. 2012) (quoting U.S. ex rel. Joshi v. St.
Luke’s Hosp., Inc., 441 F.3d 552, 556 (8th Cir. 2006)). Conclusory allegations of fraud and
deception are insufficient. Id.
Plaintiffs fail to adequately allege fraud. Further, the contention that a county court judge
submitting one order instead of seven or allegedly submitting a grievance against Ashford to the
Council for Discipline without certain letterhead somehow equates to fraud is nonsensical.
3. Office for Discipline’s Alleged Fraud
As their final basis for reconsideration and leave to amend, Plaintiffs argue the Office for
Discipline committed fraud. Filing 95 at 7-10, 15-18. Specifically, Plaintiffs allege the Office for
Discipline “violated their rules and procedures” and “covered up” the allegedly fraudulent actions
of Judge Hendrix by failing to turn over Judge Hendrix’s alleged bar complaint against Ashford to
Plaintiffs. Filing 95 at 6-9.
Plaintiffs base their fraud claims against the Office for Discipline on a February 5, 2021,
letter in which the Office for Discipline “refuse[d] to release to Plaintiff . . . any and all documents
of any written letters of complaint” because the letter is confidential under Nebraska statute. Filing

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95 at 7-8. Plaintiffs filed their most recent motion to amend on December 15, 2020, see Filing 69,
and the Court denied the motion on February 10, 2021. See Filing 76.
As previously set forth, Plaintiffs must show, “with clear and convincing evidence, that the
opposing party engaged in a fraud or misrepresentation that prevented [Plaintiffs] from fully and
fairly presenting [their] case.” Metro. St. Louis Sewer Dist., 440 F.3d at 935. Under Rule 60(b),
reconsideration motions are to correct manifest errors of law or to present newly discovered
evidence. Arnold, 627 F.3d at 721. Reconsideration motions are also “not to be used to ‘introduce
new evidence that could have been adduced during pendency’ of the motion at issue.” Id. (quoting
Hagerman, 839 F.2d at 414).
As the Court previously noted, Plaintiffs’ lawsuit against Judge Hendrix has been
dismissed. The allegations against the Office for Discipline fail as a matter of law. Plaintiffs have
failed to plausibly articulate fraud, and the Court denies reconsideration and leave to amend related
to the Office for Discipline.
C. Progression of this Case
Upon review of the docket, the Court notes that this case has now been pending nearly a
year-and-a-half, since January 1, 2020. See Filing 1. In a timely manner after the filing of the
Complaint, former defendants State of Nebraska and Judge Hendrix filed a dispositive motion,
while defendant Douglas County filed an answer. Filing 11 (Douglas County’s Answer), Filing 19
(State of Nebraska’s and Judge Hendrix’s Motion to Dismiss). The Court granted the dispositive
motion and dismissed both the State of Nebraska and Judge Hendrix as parties for numerous legal
reasons on July 30, 2020. Filing 23.
In reviewing the Court’s July 30, 2020, order, the Court does not see how this Court could
do anything but seriously consider a dispositive motion filed by Douglas County if the Court were

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to rule consistently with the legal analysis in its July 30, 2020, order and subsequent rulings.
Indeed, the Magistrate Judge made several inquiries as to why an immediate dispositive motion
was not appropriate at a hearing on this matter on September 21, 2020.3 The Magistrate Judge even
expressed confusion as to the explanation provided by Mr. Dolan in response to such inquiry after
the Magistrate Judge noted that he had reviewed the docket. Filing 104.
Since the July 30, 2020, the Court has ruled upon no less than ten substantive motions filed
by Plaintiffs; those motions, their supporting briefs and evidence, and response and reply briefs
total approximately 750 pages. Along with this order, the undersigned has issued almost forty
pages in orders and has spent considerable time responding to many baseless and repetitive filings.
Some of these filings have disparaged the Court and certain state and federal court judges with no
substantive response from Douglas County.
Ashford, in making the same motions over and over, obviously would like to appeal this
Court’s rulings. Ashford of course is not able to appeal this Court’s rulings until Douglas County
takes action to dispose of the claims against it. The Court refers this matter to the Magistrate Judge
for an immediate and concise case progression to prepare this case for a dispositive motion.
III. CONCLUSION
The Court need not recuse itself and denies Plaintiffs’ motion requesting recusal.
Additionally, because Plaintiffs have neither satisfied the Rule 60(b) standard nor plausibly
articulated additional claims, Plaintiffs’ motion for reconsideration and leave to amend is denied
in its entirety.

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The recorded audio file of the September 21, 2020 hearing has been included in the docket as Filing 104.

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Accordingly,
IT IS ORDERED:
1. Plaintiffs’ Motion for Leave to File Rule 59 and Rule 60 Motion and Brief to Alter or
Amend, Filing 94, is denied;
2. Plaintiffs’ Motion for Recusal of the Entire Panel of Judges in Nebraska, Filing 97, is
denied;
3. This matter is referred to the Magistrate Judge for case progression.
Dated this 15th day of July, 2021.
BY THE COURT:

___________________________
Brian C. Buescher
United States District Judge

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