Auld v. Central New Mexico Community College et al

Filing 76

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales denying 70 MOTION for Reconsideration, 71 Notice (Other), 72 MOTION for Order, 73 MOTION for Order, 74 MOTION to Appoint Counsel, and 75 Notice (Other). (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RIEMA AULD,
Plaintiff,
vs.

Civ. No. 14-636 KG/SCY

CENTRAL NEW MEXICO COMMUNITY COLLEGE,
PAM ETRE-PEREZ, TOM PIERCE,
WILLIAM HEENAN, CAROL ADLER,
TOM MANNING, and KATHIE WINOGRAD,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon pro se Plaintiff’s motions to reconsider or
renew her appeal; motions for order of protection; motion to refer obstruction of justice incidents
to the FBI and Department of Justice; motion to stay the case to obtain counsel; and motions for
appointment of counsel.1 (Doc. 70), filed Aug. 13, 2019; (Doc. 71), filed Aug. 14, 2019; (Doc.
72), filed Aug. 29, 2019; (Doc. 73), filed Sept. 3, 2019; (Doc. 74), filed Sept. 9, 2019; and (Doc.
75), filed Oct. 4, 2019. Plaintiff does not indicate whether she sought concurrence from
Defendants prior to filing the motions. Defendants also did not respond to any of the motions.2
Having considered the motions and the relevant law, the Court denies the motions.

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The Court acknowledges that it must liberally construe the filings of a pro se litigant and hold
that litigant “to a less stringent standard than formal pleadings drafted by lawyers.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, a pro se litigant “must follow the
same rules of procedure that govern other litigants.” Green v. Dorrell, 969 F.2d 915, 917 (10th
Cir. 1992). Moreover, the Court does not “assume the role of advocate for the pro se litigant.”
Hall, 935 F.2d at 1110.
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Plaintiff’s motions were electronically mailed to Defendants’ counsel of record.

As an initial matter, the Court notes that the Local Rules state that an omission of “a
recitation of a good-faith request for concurrence” in a motion can lead to the summary denial of
that motion. D.N.M. LR-Cv 7.1(a). The Local Rules further state that a failure to respond to a
motion “constitutes consent to grant the motion.” D.N.M. LR-Cv 7.1(b). Here, Plaintiff violated
Local Rule 7.1(a) while Defendants violated Local Rule 7.1(b). Despite these violations of the
Local Rules, the Court, in the interest of justice, chooses to address the merits of the motions.
D.N.M. LR-Cv 1.7 (“These rules may be waived by a Judge to avoid injustice.”).
On June 6, 2014, Plaintiff filed in state court an amended employment discrimination
complaint against Central New Mexico Community College (CNM) and its employees. (Doc. 12). On July 11, 2014, Defendants removed the employment discrimination lawsuit to federal
court. (Doc. 1). On June 30, 2015, the Court dismissed Plaintiff's claims against Defendants.
See (Doc. 44).
More than three years later, Plaintiff filed: (i) a motion to reopen the case (also construed
as a motion to amend the complaint); (ii) a motion to appoint counsel; (iii) a motion to be entered
in the Federal Witness Protection Program and for emergency attorney representation; and (iv) a
motion for protection. See (Doc. 45), filed Nov. 1, 2018; (Doc. 47), filed Nov. 16, 2018; (Doc.
52), filed Nov. 30, 2018; and (Doc. 56), filed Jan. 22, 2019. These motions did not concern
Plaintiff’s employment discrimination lawsuit. Instead, the motions pertained to allegations of
medical mistreatment by the University of New Mexico Hospital (UNMH) and its employees.
On April 22, 2019, the Court denied the motion to reopen the case, denied the motion to amend
the complaint, and denied the motions for protection and to appoint counsel as moot. See (Doc.
61) at 4.

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On May 7, 2019, Plaintiff filed a notice of appeal. (Doc. 62). Then, on July 26, 2019,
the Tenth Circuit Court of Appeals dismissed the appeal for lack of prosecution. (Doc. 69).
About two weeks later, Plaintiff began filing the above pending motions.
1. Motions to Reconsider or Renew her Appeal
Plaintiff did not file the motions to reconsider or renew her appeal in her appellate case.
The Court cannot address those motions for the Tenth Circuit. Therefore, the Court denies
Plaintiff’s motions to reconsider or renew her appeal without prejudice to Plaintiff filing them in
her appellate case.
2. Motions for an Order of Protection
Plaintiff bases her three motions for an order of protection on grievances she has
regarding treatment at UNMH and included two of those motions in her motions to reconsider or
renew her appeal. However, only the Tenth Circuit can decide the motions to reconsider or
renew the appeal, including the two related motions for an order of protection. As a result, this
Court denies those motions for an order of protection without prejudice to Plaintiff filing the
motions in her appellate case.
To the extent Plaintiff is seeking an order of protection from this Court and not from the
Tenth Circuit, the Court notes that the allegations supporting the motions for an order of
protection bear no reasonable connection to Plaintiff’s employment discrimination complaint
against CNM and its employees. As noted above, the Court denied Plaintiff’s motion to amend
her complaint to include grievances against UNMH and its employees for medical mistreatment.
(Doc. 61) at 4. Consequently, the UNMH claims, and any allegations associated with those
claims, are not before the Court. Because the UNMH claims and allegations in the motions for

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an order of protection are not before the Court, the Court denies the three motions for an order of
protection for that reason as well.
3. Motion to Refer Obstruction of Justice Incidents to the FBI and Department of Justice
Plaintiff does not cite any legal authority to suggest that the Court has the authority or
duty to refer alleged obstruction of justice incidents to the FBI and Department of Justice. See
D.N.M. LR-Cv 7.3 (a) (“A motion … must cite authority in support of the legal positions
advanced.”). In addition, Plaintiff does not explain why she cannot report those incidents
directly to the FBI and Department of Justice. Hence, the motion to refer obstruction of justice
incidents to the FBI and Department of Justice lacks merit. The Court, therefore, denies that
motion.
4. Motion to Stay the Case to Obtain Counsel
Plaintiff filed the motion to stay the case to obtain counsel on August 29, 2019. (Doc.
72). As of the date of this order, Plaintiff has had four months to obtain counsel, and in effect
received a four-month stay. Four months is sufficient time to obtain counsel and as yet failed to
do so. Thus, a further stay is unwarranted. Accordingly, the Court denies the motion to stay the
case to obtain counsel.
5. Motions for Appointment of Counsel
Plaintiff asserts that the Court should appoint counsel for her because she cannot afford
an attorney and she suffers from depression. Federal law provides that the “court may request an
attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). In addition
to determining the financial need of the movant, if the court determines that the movant has a
colorable claim, it “should consider the nature of the factual issues raised in the claim and the
ability of the plaintiff to investigate the crucial facts.” Rucks v. Boergermann, 57 F.3d 978, 979
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(10th Cir. 1995). The Tenth Circuit has adopted several factors for determining whether to
appoint counsel, including: “the merits of the litigant's claims, the nature of the factual issues
raised in the claims, the litigant's ability to present his claims, and the complexity of the legal
issues raised by the claims.” Id. The plaintiff bears the burden of convincing “the court that
there is sufficient merit to his claim to warrant appointment of counsel.” Hill v. SmithKline
Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). The decision to appoint counsel is within
the sound discretion of the trial court. James v. Hamaker, 2016 WL 97767, at *2 (D. Colo.).
Assuming Plaintiff cannot afford to retain counsel, Plaintiff’s UNMH claims are not
before the Court and, thus, are not colorable in the context of this lawsuit. Even if Plaintiff has
colorable claims, Plaintiff has not demonstrated that she is unable to present her claims and
positions, despite suffering from depression. Compare Rucks, 57 F.3d at 979 (affirming district
court’s denial of plaintiff’s motion to appoint counsel where plaintiff “failed to demonstrate the
existence of any special circumstances such as those in McCarthy v. Weinberg, where the pro se
plaintiff was confined to a wheelchair, had poor eyesight, suffered from a speech impediment
and memory lapses, and had general difficulty in communication”). In fact, Plaintiff’s past
activity in this case shows her ability to explain to the Court what she seeks and why.
Furthermore, the factual and legal issues are not so complex that it would be fundamentally
unfair for Plaintiff to proceed without counsel. Plaintiff has not met her burden of convincing
the Court that her claims warrant an appointment of counsel. Therefore, the Court denies her
motions for appointment of counsel.
IT IS ORDERED that
1. the motions to reconsider or renew her appeal (Docs. 70 and 71) are denied without
prejudice to Plaintiff filing those motions in her appellate case;
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2. to the extent the motions for an order of protection (Docs. 70, 71, and 74) relate to
Plaintiff’s motions to reconsider or renew her appeal, those motions are denied without prejudice
to Plaintiff filing those motions in her appellate case, otherwise those motions are denied; and
3. the motion to refer obstruction of justice incidents to the FBI and Department of
Justice (Doc. 73); the motion to stay the case to obtain counsel (Doc. 72); and the motions for
appointment of counsel (Docs. 70-75) are denied.

________________________________
UNITED STATES DISTRICT JUDGE

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