Raz v. State of New Mexico

Filing 28

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales denying 21 Plaintiff's Motion for Leave to File a Sur-reply Memorandum; and granting 12 State of New Mexico's Motion to Dismiss the Amended Complaint. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

BOAZ RAZ,
Plaintiff,
v.

Civ. No. 15-966 KG/WPL

STATE OF NEW MEXICO,
Defendant.

MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon Defendant State of New Mexico’s Motion to
Dismiss the Amended Complaint (“Motion to Dismiss”), filed on November 25, 2015, (Doc. 12);
Plaintiff’s Response to the State of New Mexico’s Motion to Dismiss Amended Complaint
(“Response”), filed on December 17, 2015, (Doc. 16); and the State of New Mexico’s Reply
Memorandum in Further Support of its Motion to Dismiss Amended Complaint (“Reply”), filed
January 4, 2016. (Doc. 17). Also before the Court is Plaintiff’s Motion for Leave to File a Surreply Memorandum (“Motion for Leave to File Surreply”), filed January 7, 2016, (Doc. 21); and
Defendant’s Response in Opposition to Plaintiff’s Motion for Leave to File a Sur-reply
Memorandum, filed January 10, 2016. (Doc. 22). Having reviewed both motions, the parties’
briefs, and relevant law, the Court DENIES Plaintiff’s Motion for Leave to File Surreply and
GRANTS Defendants’ Motion to Dismiss.
I.

Background
This case stems from a domestic relations matter before the New Mexico Second Judicial

District Court (“Second Judicial District Court”). In his Amended Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983 (“Amended Complaint”), Plaintiff Boaz Raz (“Plaintiff”) alleges
that, in the course of the state court proceedings, the Second Judicial District Court ordered him
to continue operating and working for his business, SecurityUSA, despite the fact that the
company is losing money and does not have sufficient income to meet all of its obligations.
(Doc. 6) at 5–6. As a result, Plaintiff states that he has been forced to continue to work for
SecurityUSA, without income, for the benefit of his ex-wife. Id. at 6. By forcing Plaintiff to do
so under threat of incarceration, Plaintiff claims that the Second Judicial District Court is forcing
Plaintiff into involuntary servitude, in violation of his rights under the Thirteenth Amendment.
Id. Plaintiff asks this Court to “end the court order which forces [Plaintiff] to work for free at
Security[USA]” and to order Defendant State of New Mexico (“Defendant”) to pay him
compensatory and punitive damages, and attorney’s fees and costs. Id. at 7. Plaintiff is
proceeding pro se.
Defendant then moved to dismiss the Amended Complaint with prejudice pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 12). As grounds, Defendant
argues that this Court lacks subject matter jurisdiction to hear Plaintiff’s claims and that, even if
this Court did have jurisdiction it should abstain from asserting it. Id. at 5–12. In addition,
Defendant argues that the Amended Complaint otherwise fails to state a claim upon which relief
can be granted. Id. at 13. In response, Plaintiff urges that this Court has jurisdiction to hear his
civil rights claim, and that his claim is adequately pled. (Doc. 16) at 3–4.
Subsequently, Plaintiff filed his Motion for Leave to File Surreply, requesting leave to
file a surreply to Defendant’s Reply, which raised new arguments. (Doc. 21). Defendant
opposes the Motion to for Leave to File Surreply. (Doc. 22).

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II.

Standard of Review
A. Rule 12(b)(1)
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may seek dismissal of a

lawsuit for lack of subject matter jurisdiction. “Rule 12(b)(1) motions generally take one of two
forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject matter
jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is
based.” Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002) (citing Holt v. United States,
46 F.3d 1000, 1002–03 (10th Cir.1995)). Where a Rule 12(b)(1) motion constitutes a facial
attack on the allegation of subject matter jurisdiction contained in the complaint, courts presume
all of the factual allegations contained in the complaint to be true. Id.
B. Rule 12(b)(6)
In reviewing a Rule 12(b)(6) motion asserting a failure to state a claim upon which relief
can be granted, a Court must accept all well-pleaded allegations as true and must view them in a
light most favorable to the plaintiff. Zinermon v. Burch, 494 U.S. 113, 118 (1990). Rule
12(b)(6) requires that a complaint set forth the grounds of a plaintiff’s entitlement to relief
through more than labels, conclusions and formulaic recitation of the elements of a cause of
action. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). To survive a 12(b)(6) motion
to dismiss, a complaint does not need to include detailed factual allegations, but “factual
allegations must be enough to raise a right to relief above the speculative level.” Id. In other
words, dismissal of a complaint under Rule 12(b)(6) is proper only where it is obvious that the
plaintiff failed to set forth “enough facts to state a claim to relief that is plausible on its face.” Id.
at 570.

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While the Tenth Circuit requires that pleadings filed by pro se litigants be held to a less
stringent standard than that of a lawyer, this District has long insisted that pro se parties follow
the same rules of civil procedure as any other litigant. Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991) (internal citation omitted); Garrett v. Selby Connor Maddux & Janer, 425 F.3d
836, 840 (10th Cir. 2005). Nor are the courts to act as advocates for pro se parties. Hall, 935
F.2d at 1110.
III.

Discussion
A. Motion for Leave to File Surreply
As an initial matter, Plaintiff asks this Court to grant him leave to file a surreply, which

addresses arguments in Defendant’s reply brief. (Doc. 21) at 1.
In this District, “[t]he filing of a surreply requires leave of the Court.” D.N.M.LR-Civ.
7.4(b). “A surreply is appropriate and should be allowed where new arguments are raised in a
reply brief.” Walker v. THI of New Mexico at Hobbs Center, No. CIV 09-0060 JB/KBM,
2011 WL 2728344, at *1 (D.N.M. July 6, 2011) (internal citation omitted).
Plaintiff states that he wishes to address certain arguments Defendant raised for the first
time in its Reply. Plaintiff emphasizes that his “complaint is about rights afforded [to him] under
the 13th Amendment, my freedom from slavery and involuntary servitude and not about my
divorce or its outcome.” (Doc. 21) at 1. However, Plaintiff fails to identify any argument
Defendant made for the first time in its Reply. Indeed, Plaintiff already clarified his claims,
using language almost identical to the language quoted above, in his Response. (Doc. 16) at 3.
As a result, to allow a surreply would be inappropriate. Therefore, the Court will DENY
Plaintiff’s Motion for Leave to File Surreply.

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B. Motion to Dismiss
Defendant argues that this Court should dismiss the Amended Complaint with prejudice
because it lacks subject matter jurisdiction and otherwise fails to state a claim upon which relief
can be granted. The Court will address each argument in turn.
1. Dismissal for Lack of Jurisdiction
Defendant first argues that the Court should dismiss Plaintiff’s Amended Complaint with
prejudice for lack of subject matter jurisdiction on several grounds, including the RookerFeldman doctrine, the Younger abstention doctrine, and sovereign and judicial immunity.
Defendant contends that Plaintiff essentially asks this Court to supersede an order of the Second
Judicial District Court, and that this Court lacks subject matter jurisdiction to hear the claim or
grant the requested relief. To the extent Plaintiff does allege such a claim, the Court finds
dismissal is proper in accordance with the Rooker-Feldman doctrine and, thus, the Court need
not address Defendant’s alternative contentions.
The Rooker-Feldman doctrine applies in scenarios where the federal plaintiff seeks
appellate review of a state court judgment. The doctrine bars lower federal courts from hearing
claims that were either (1) actually decided by a state court or (2) “inextricably intertwined” with
a prior state court judgment. Rooker v. Fidelity Trust Co., 263 U.S. 413, 415–16 (1923); District
of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482 n.16 (1983). In contrast, where a
plaintiff is not attacking a state court judgment itself, the Rooker-Feldman doctrine does not
apply. Kiowa Indian Tribe of Okla. v. Hoover, 150 F.3d 1163, 1169–71 (10th Cir. 1998). For
example, “[i]f a federal plaintiff present[s] some independent claim, albeit one that denies a legal
conclusion that a state court has reached in a case to which he was a party . . ., then there is
jurisdiction and state law determines whether the defendant prevails under principles of

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preclusion.” Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 293 (2005)
(internal quotation omitted). Therefore, the crucial inquiry for this Court is whether Plaintiff is
attacking a claim either (1) already decided by the Second Judicial District Court, (2)
“inextricably intertwined” with that decision, or (3) whether Plaintiff presents “some
independent claim” to be addressed anew by this Court.
Plaintiff urges in his Response that his claims have “nothing to do with my divorce
proceeding,” and that the Amended Complaint asserts civil rights claims. (Doc. 16) at 3. Yet, he
asks this Court to reverse the Second Judicial District Court Decision. Plaintiff’s civil rights
claims are certainly independent claims that this Court will consider below. However, to the
extent Plaintiff seeks review of the “bona fides” of the decision in the state court proceeding,
those claims are barred by the Rooker-Feldman doctrine, and are dismissed with prejudice.
2. Dismissal for Failure to State a Claim
Defendant further argues that Plaintiff fails to state a claim for involuntary servitude
under the Thirteenth Amendment, pursuant to 42 U.S.C. § 1983. Plaintiff continues to
emphasize that the State of New Mexico has violated his civil rights.
Here, Plaintiff has sued the State of New Mexico under § 1983 for violating his right to
be free from involuntary servitude under the Thirteenth Amendment. However, “a cause of
action under [S]ection 1983 requires the deprivation of a civil right by a ‘person’ acting under
color of state law. McLaughlin v. Bd. of Trustees of State Colleges of Colorado, 215 F.3d 1168,
1172 (10th Cir. 2000) (citing 42 U.S.C. § 1983 and Sutton v. Utah State School for Deaf and
Blind, 173 F.3d 1226, 1237 (10th Cir. 1999)). “The Supreme Court held in Will [v. Michigan
Dep’t of State Police, 491 U.S. 58, 71 (1989)] ‘that neither a State nor its officials acting in their

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official capacities are “persons” under § 1983.’” Id. Having only sued the State of New Mexico,
Plaintiff has failed to state a claim against a person covered by § 1983. Id.
Even if the Court were to construe Plaintiff’s Amended Complaint as alleging the claim
against the Second Judicial District Court, that claim would also fail.1 Indeed, “‘a governmental
entity that is an arm of the state for Eleventh Amendment purposes’ is not a ‘person’ for section
1983 purposes.” Id. (citing Harris v. Champion, 51 F.3d 901, 905–06 (10th Cir. 1995),
superseded by statute on other grounds, Knox v. Bland, 32 F.3d 1290, 1292 (10th Cir. 2011)).
As a result, to the extent Plaintiff alleges claims against the Second Judicial District Court, those
claims must be dismissed. Romanik v. First Judicial District Court, No. CV 11-0138 JP/WDS,
at *2 (D.N.M. Feb. 18, 2011) (dismissing with prejudice claims against New Mexico state court
on grounds that state court was not person under Section 1983).
Because Plaintiff’s Amended Complaint fails to state a claim against a person covered by
Section 1983, the Court will dismiss Plaintiff’s Complaint with prejudice. Zapata v. Porter, et
al., No. CIV-06-0952 MCA/KBM, at *3 (D.N.M. Nov. 6, 2006) (dismissing Section 1983 claims
against State with prejudice and without opportunity to amend), aff’d, No. 06-2334, at *6–7
(10th Cir. Oct. 24, 2007).
IV.

Conclusion
For the foregoing reasons, IT IS THEREFORE ORDERED that:
(1) Plaintiff’s Motion for Leave to File a Sur-reply Memorandum, (Doc. 21) be
DENIED;
(2) the State of New Mexico’s Motion to Dismiss the Amended Complaint, (Doc. 12),
be GRANTED; and

1

Plaintiff does not allege claims against, or specifically mention in the Amended Complaint, an
individual state court judge.
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(3) Plaintiff’s Amended Complaint be DISMISSED WITH PREJUDICE.

_______________________________
UNITED STATES DISTRICT JUDGE

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