Diaz v. Holder et al

Filing 133

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales denying 132 Plaintiff's Request Permission to the Courts and Presiding Judges to File a Motion Opposing to the Post Order Dated October 17, 2016 Pursuant to Fed. R. Civ. P. 60(b)(1)(C)(1): (Surprised) Fed. R. Civ. P. N.M.U.S.D.L.R. 7.1 the Failure to Notify: or in the Alternative Grant Plaintiff an Order for an Appeal. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CARLOS L. DIAZ, pro se, in his personal
capacity and in and for the Estate of
Edmundo B. Diaz as brother and personal
representative of the Estate,
Plaintiff,
vs.

Civ. 14-1086 KG/SCY

MR. GARY KING, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon “Plaintiff’s Request Permission to the Courts
and Presiding Judges to File a Motion Opposing to the Post Order Dated October 17, 2016
Pursuant to Fed. R. Civ. P. 60(b)(1)(C)(1): (Surprised) Fed. R. Civ. P. N.M.U.S.D.L.R. 7.1 the
Failure to Notify: or in the Alternative Grant Plaintiff an Order for an Appeal” (Motion), filed
December 9, 2016. (Doc. 132). Defendants have not responded to the Motion. Although
D.N.M. LR-Cv 7.1(b) states that failure “to file and serve a response in opposition to a motion
within the time prescribed for doing so constitutes consent to grant the motion,” the Court, in the
interest of justice and considering the preference to rule on the merits of motions, will determine
the Motion on its merits. Having reviewed the Motion and the relevant documents, the Court
denies the Motion.
Plaintiff argues that the Court should give him an opportunity to file a motion opposing
the Court’s October 17, 2016, Memorandum Opinion and Order which, inter alia, proposed
certain filing restrictions that became effective on November 1, 2017. In the alternative, Plaintiff
seeks an order permitting him to appeal the filing restrictions.

A. Background
In responding to “Plaintiff Motion to Vacate Order Issued on January 13, 2016, Pursuant
to Federal Rules of Civil Procedures 60(b)(1)(4)(1) in Support Federal Rule of Civil Procedure
8(a)(b)(c)(d)(e)” (Doc. 120), filed September 2, 2016, Defendants the Honorable James Sanchez,
the Honorable Allen Smith, and Charles Sanchez (collectively, Judicial Defendants) moved to
impose filing restrictions on Plaintiff. (Doc. 122). Judicial Defendants included in their
response a Certificate of Service indicating that they mailed the response to the address Plaintiff
provided in his amended complaint. Id. at 4. Plaintiff did not file a reply to that response, but,
instead, filed a notice of appeal on September 30, 2016.1 (Doc. 125).
On October 17, 2016, the Court granted, in part, Judicial Defendants’ request to impose
filing restrictions on Plaintiff and entered a proposed order setting forth the restrictions. (Doc.
130). In doing so, the Court ordered:
4. Plaintiff has ten days from the date of this Memorandum Opinion and Order to file
written objections to the proposed filing restrictions;
5. if Plaintiff does not file timely objections, the proposed filing restrictions will take
effect fifteen days from the date of this Memorandum Opinion and Order; and
6. if Plaintiff files timely objections, the proposed filing restrictions will not take effect,
if at all, until after the Court rules on the objections.
Id. at 8. The Court also mailed the Memorandum Opinion and Order to the address Plaintiff
provided in the amended complaint. Plaintiff did not file written objections within ten days of
the October 17, 2016, Memorandum Opinion and Order, so the filing restrictions went into effect
on November 1, 2016. More than a month after the filing restrictions went into effect, Plaintiff
filed the Motion now before the Court.

1

The Court dismissed Plaintiff’s claims against the last remaining Defendant on September 6,
2016, and entered a Final Order of Dismissal on that date. (Docs. 123 and 124).
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B. Discussion
Plaintiff argues first that he did not respond to Judicial Defendants’ request to impose
filing restrictions, because Judicial Defendants did not serve him with that request. Plaintiff
contends that Judicial Defendants’ attorney should have telephoned or emailed him to notify him
of the request to impose filing restrictions. Plaintiff cites D.N.M. LR-Cv 7.1 for, presumably, the
requirement that a motion or response “must include a certificate of service on each party.” 2
Judicial Defendants, in fact, included a Certificate of Service in their response and request to
impose filing restrictions. In addition, when Judicial Defendants mailed their response and
request to impose filing restrictions to the address Plaintiff provided in his amended complaint,
they completed service of that response and request. See Fed. R. Civ. P. 5(b)(2)(C) (mailing
paper “to person’s last known address” completes service). Judicial Defendants, therefore,
properly served the response and request to impose filing restrictions on Plaintiff.
Plaintiff further argues that he was “surprised” by the October 17, 2016, Memorandum
Opinion and Order’s filing restrictions and should, therefore, be given an opportunity to oppose
those filing restrictions. Plaintiff cites Fed. R. Civ. P. 60(b)(1) which states that a court, on just
terms, may relieve a party “from a final judgment, order, or proceeding” when there has been
“surprise.” Plaintiff’s “surprise” argument fails, however, for several reasons. First, Plaintiff
does not explain how he was surprised. Like Judicial Defendants, the Court properly served the
October 17, 2016, Memorandum Opinion and Order on Plaintiff by mailing it to his last known
address. Second, the Court provided Plaintiff an opportunity to object to the proposed filing
restrictions and notified Plaintiff that a failure to timely object would lead to the filing

2

Plaintiff does not argue that Judicial Defendants failed, in good faith, to obtain a concurrence
from him on the proposed filing restrictions, as required under Local Rule 7.1(a). Nonetheless, it
is clear that Plaintiff would not have concurred with the proposed filing restrictions.
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restrictions becoming effective 15 days from the October 17, 2016, Memorandum Opinion and
Order. Finally, Rule 60(b) does not apply to the Memorandum Opinion and Order imposing
filing restrictions. See Raytheon Constructors, Inc. v. ASARCO, Inc., 368 F.3d 1214, 1217 (10th
Cir. 2003) (holding that Rule 60(b) only applies “to final orders or judgments” which adjudicate
all rights and liabilities of all of parties). For the foregoing reasons, the Court denies Plaintiff’s
request to now object to the filing restrictions.
Plaintiff seeks, in the alternative, an order which would allow him to appeal the October
17, 2016, Memorandum Opinion and Order imposing filing restrictions. Because the
Memorandum Opinion and Order constitutes a postjudgment order fully disposing of Judicial
Defendants’ request to impose filing restrictions, the Memorandum Opinion and Order is a final
appealable decision under 28 U.S.C. § 1291. Roose v. Patrick, 98 F. App'x 719, 723 (10th Cir.
2004) (finding postjudgment order disposing of all issues raised in motion for leave to file
second amended complaint “was an appealable final decision under § 1291.”). Hence, Plaintiff
is free to appeal the Court’s Memorandum Opinion and Order imposing filing restrictions
without any further order from this Court. The Court, therefore, finds it unnecessary to grant
Plaintiff’s request for an order allowing him to appeal the filing restrictions.
IT IS ORDERED that “Plaintiff’s Request Permission to the Courts and Presiding Judges
to File a Motion Opposing to the Post Order Dated October 17, 2016 Pursuant to Fed. R. Civ. P.
60(b)(1)(C)(1): (Surprised) Fed. R. Civ. P. N.M.U.S.D.L.R. 7.1 the Failure to Notify: or in the
Alternative Grant Plaintiff an Order for an Appeal” (Doc. 132) is denied.

________________________________
UNITED STATES DISTRICT JUDGE

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