Serna v. Webster

Filing 185

AMENDED MEMORANDUM OPINION AND ORDER by District Judge James O. Browning adopting the Magistrate Judge's Third Proposed Findings and Recommended Disposition 172 ; dismissing the case with prejudice; denying as moot the Defendants' Motion to Strike and Dismiss Plaintiff's Complaint and Plaintiff Sernas [sic] Motion for Leave to File a Surreply Objection to Dismiss & Strike Plaintiff's Complaint 148 ; and, imposing filing restrictions upon Plaintiff Emma Serna as set forth in the Court's Memorandum Opinion and Order Adopting the Magistrate Judge's Proposed Findings and Recommended Disposition at 91-92 153 (meq)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
EMMA SERNA, d/b/a SERNA &
ASSOCIATES CONSTRUCTION CO., LLC,
Plaintiff,
vs.

No. CIV 17-0020 JB/JHR

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,
Defendants.
AMENDED1 MEMORANDUM OPINION AND ORDER ADOPTING THE
MAGISTRATE JUDGE’S THIRD PROPOSED FINDINGS AND RECOMMENDED
DISPOSITION, DISMISSING THIS CASE WITH PREJUDICE, AND IMPOSING
FILING RESTRICTIONS UPON PLAINTIFF, EMMA SERNA
1

The Court files this Amended Memorandum Opinion and Order to correct typographical
errors. In the original Memorandum Opinion and Order Adopting the Magistrate Judge’s Third
Proposed Findings and Recommended Disposition, Dismissing this Case with Prejudice, and
Imposing Filing Restrictions Upon Plaintiff, Emma Serna, filed March 31, 2018 (Doc. 179)
(“Original MOO”), the Court wrote:
The Court knows some of the Defendants, as it know many members of the New
Mexico bar and judiciary . . . . To the best of the Court’s memory, it has been in
any of the Defendants home or they in the Court’s home. The Court noted at the

THIS MATTER comes before the Court on the Magistrate Judge’s Third Proposed
Findings and Recommended Disposition, filed January 26, 2018 (Doc. 172)(“Third PFRD”).
The Court, having conducted a de novo review, concludes that the Honorable Judge Jerry H.
Ritter, United States Magistrate Judge’s conclusions and recommendations in the Third PFRD
are not clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion. The
Court, therefore, will adopt the Third PFRD. Accordingly, the Court will dismiss this case with
prejudice and impose filing restrictions on Plaintiff Emma Serna as set forth in the Court’s
Memorandum Opinion Order Adopting the Magistrate Judge’s Proposed Findings and
Recommended Disposition at 91-92, filed September 30, 2017 (Doc. 153)(“MOO”). The Court
denies all other pending motions as moot.
FACTUAL BACKGROUND
The Honorable William P. Lynch, United States Magistrate Judge, set forth the case’s full
history in the Second Proposed Findings and Recommended Disposition, filed May 4, 2017
(Doc. 118)(“Second PFRD”). The Court will not repeat those facts here. The case arises from
Serna’s construction contract dispute with Defendants Margette Webster and David Webster in
state court. See Second PFRD at 4-5. Serna lost in state court.
Defendants’ names when it was assigned the case . . . and did not see any reason
to recuse itself.
Original MOO at 15 n.3. That footnote now correctly reads:
The Court knows some of the Defendants, as it knows many members of the New
Mexico bar and judiciary . . . . To the best of the Court’s memory, it has not been
in any of the Defendants’ homes or they in the Court’s home. The Court
reviewed the Defendants’ names when it was assigned the case . . . and did not
see any reason to recuse itself.
Infra at 16 n.4.

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PROCEDURAL BACKGROUND
Serna now sues the Websters, their attorney, the attorneys that represented her, sthe
judges that presided over Serna’s case, and various clerks and employees of the New Mexico
courts and agencies that investigated Serna’s claims; she also generally asserts “that over thirty
defendants have violated her constitutional rights and engaged in a widespread conspiracy
against her.” Second PFRD at 5-11. In all, Serna brought 26 counts against the Defendants. See
Second PFRD at 11-18. In the Second PFRD, which addressed 53 separate filings, Magistrate
Judge Lynch recommended that the Court dismiss most of Serna’s claims and impose filing
restrictions on her. See Second PFRD at 44. The Court adopted Magistrate Judge Lynch’s
recommendations on September 30, 2017. See MOO at 1. Relevant here, the Court ordered the
following:
1. Serna may file one amended complaint as only to Defendants [Alex]
Chisholm, [Robert] Simon and the Estate of Paul Becht. Serna must file the
amended complaint within ten days from this Order’s date of entry, and may
not contain criminal charges of any kind.
2. Serna may show cause, in one written document, why filing restrictions should
not be imposed against her. Serna must submit this document within ten days
from this Order’s date of entry and must not contain spurious allegations of
bribery, collusion, or other fancies that the world has conspired against her.
3. The Clerk of Court is directed not to accept any other filings, other than those
described in (1) and (2), from Serna in this matter until further Order of the
Court.
4. Unless Serna files a timely and compliant response, the Court will impose the
following restrictions on Serna on the eleventh day after this Order’s date of
entry:
a. To obtain permission to proceed pro se against the Defendants named
herein, Serna must take the following steps:
i. File a petition with the Clerk of the Court requesting leave to
file a pro se original proceeding against the Defendants.

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ii. File with the Clerk a notarized affidavit, in proper legal form,
which recites the issues she seeks to present, including a short
discussion of the legal right asserted and why the Court has
jurisdiction over the matter. The affidavit must certify, to the
best of Serna’s knowledge, that the legal arguments being
raised are not frivolous or made in bad faith, that they are
warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law, that the
new suit is not interposed for any improper purpose such as
delay or to needlessly increase the cost of litigation, and that
she will comply with all Federal and local rules of this Court.
The affidavit must certify why the proposed new suit does not
present the same issues decided by this Court and repeatedly
addressed by the New Mexico courts and why another suit
against these Defendants would not be an abuse of the system.
5. Serna shall submit these documents to the Clerk of the Court, who shall
forward them to the Chief United States Magistrate Judge for review to
determine whether to permit a pro se original proceeding. Without the Chief
Magistrate Judge’s approval, and the concurrence of the assigned Article III
Judge, the Court will dismiss the action. If the Chief Magistrate Judge
approves the filing, he or she shall enter an order indicating that the new
proceeding shall proceed in accordance with the Federal Rules of Civil
Procedure.
6. Serna shall have ten days from the date of this order to file written objections,
limited to fifteen pages, to these proposed restrictions. If Serna does not file
objections, the restrictions shall take affect eleven days from the date of this
order. The filing restrictions shall apply to any matter filed after that time. If
Serna timely files objections, these restrictions shall not take effect until the
Court has ruled on the objections.
MOO at 91-92.
Serna did not file an amended complaint, nor did she file a response to the Court’s
proposed filing restrictions. Instead, Serna filed an appeal with the United States Court of
Appeals for the Tenth Circuit. See Notice of Appeal From U.S. District Court, filed October 6,
2017 (Doc. 156). She also filed a motion to recuse the Court from presiding over this case. See
Motion to Recuse & Show Cause With Respect to Court Proceedings, filed October 31, 2017
(Doc. 164)(“Motion to Recuse”). The Tenth Circuit has since remanded the case to the Court,

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because, “[t]o date, Ms. Serna has not filed an amended complaint, nor has the district court
dismissed the case. As a result, the district court has not entered a final decision and we lack
jurisdiction under 28 U.S.C. § 1291.” Order at 3, (dated November 27, 2017) filed November
27, 2017 (Doc. 165-1).

Thereafter, Serna filed a Motion to Enforce State Mandate and

Reconsideration of the Judges Recommended Disposition, filed December 7, 2017 (Doc. 167),
but she has not filed an amended complaint or objections to the Court’s proposed filing
restrictions. Defendants Judge Monica Zamora, Judge Beatrice Brickhouse, Judge Carl Butkus,
Judge Alan Malott, Joey Moya, Amy Mayer, Madeline Garcia, Lynette Rodriguez, Arthur Pepin,
Cheryl Ortega, James Noel, Cindy Molina, Bobby Jo Walker, and the State of New Mexico
(“Judicial Defendants”) have since filed Judicial Defendants’ Renewed Motion to Impose Filing
Restrictions on Plaintiff, filed December 8, 2017 (Doc. 168)(emphasis in original).
Magistrate Judge Ritter sets forth this procedural history in the Third PFRD. See Third
PFRD at 2-3.

Then, after discussing the applicable standards, Magistrate Judge Ritter

recommends that the Court dismiss this case with prejudice as a sanction for Serna’s lengthy and
often abusive filing history, and for her failure to comply with the Court’s most recent MOO.
See Third PFRD at 5-7. Finally, Magistrate Judge Ritter reviewed the filing restrictions that the
Court proposed and recommended that the Court enter them. See Third PFRD at 7-8.
Since Magistrate Judge Ritter entered his Third PFRD, Serna has filed several
documents: (i) Document #172 Dated 1/26/2018 Acceptance of Reviewal [sic] by Federal Court
of Appeals for Abuse of Discretion, filed February 2, 2018 (Doc. 173)(“Abuse of Discretion
Motion”) ; Motion: to the Honorable Chief Judge M. Christina Armijo Recusal of Judge
Browning, filed February 6, 2018 (Doc. 174); and (iii) To The Honorable Chief Justice [sic]:
Jude Johnson, Emergency Request: Order to State District Court to Cancel Hearing of March 28,

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2018 @ 10:00 A.M. Defendant Judge Nan Nash presiding over Case 202-cv-2007-06641
consolidated w/cv-2007-09594, filed March 9, 2018 (Doc. 176)(“Cancel Request”).

In the

Cancel Request, Serna does not address the PFRD, but in the Abuse of Discretion Motion, Serna
argues (i) that her case is not frivolous or malicious, and (ii) that the Court should not impose
filing restrictions. See generally Abuse of Discretion Motion at 1-5, 7-9.
LAW REGARDING OBJECTIONS TO PROPOSED FINDINGS AND
RECOMMENDATIONS
District courts may refer dispositive motions to a Magistrate Judge for a
recommended disposition.

See Fed. R. Civ. P. 72(b)(1) (“A magistrate judge must

promptly conduct the required proceedings when assigned, without the parties’ consent, to
hear a pretrial matter dispositive of a claim or defense . . . .”).

Rule 72(b)(2) governs

objections: “Within 14 days after being served with a copy of the recommended disposition, a
party may serve and file specific written objections to the proposed findings and
recommendations.” Finally, when resolving objections to a Magistrate Judge’s proposal, “[t]he
district judge must determine de novo any part of the magistrate judge’s disposition that has
been properly objected to. The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Fed. R. Civ. P. 72(b)(3). Similarly, 28 U.S.C. § 636 provides:
A judge of the court shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is
made. A judge of the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. The judge may also
receive further evidence or recommit the matter to the magistrate judge with
instructions.
28 U.S.C. § 636(b)(1).
“‘The filing of objections to a magistrate’s report enables the district judge to focus

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attention on those issues -- factual and legal -- that are at the heart of the parties’ dispute.’”
United States v. One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, and
Contents, 73 F.3d 1057, 1059 (10th Cir. 1996)(“One Parcel”) (quoting Thomas v. Arn, 474
U.S. 140, 147 (1985)). As the Tenth Circuit has noted, “the filing of objections advances the
interests that underlie the Magistrate’s Act,[2] including judicial efficiency.” One Parcel, 73
F.3d at 1059 (citing Niehaus v. Kan. Bar Ass’n, 793 F.2d 1159, 1165 (10th Cir. 1986);
United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981)).
The Tenth Circuit has held “that a party’s objections to the magistrate judge’s report
and recommendation must be both timely and specific to preserve an issue for de novo review
by the district court or for appellate review.” One Parcel, 73 F.3d at 1060. “To further
advance the policies behind the Magistrate’s Act, [the Tenth Circuit], like numerous other
circuits, have adopted ‘a firm waiver rule’ that ‘provides that the failure to make timely
objections to the magistrate’s findings or recommendations waives appellate review of both
factual and legal questions.’” One Parcel, 73 F.3d at 1059 (citations omitted). In addition to
requiring specificity in objections, the Tenth Circuit has stated that “[i]ssues raised for the first
time in objections to the magistrate judge’s recommendation are deemed waived.” Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996). See United States v. Garfinkle, 261 F.3d 1030,
1031 (10th Cir. 2001)(“In this circuit, theories raised for the first time in objections to the
magistrate judge’s report are deemed waived.”). In an unpublished opinion, the Tenth Circuit
stated that “the district court correctly held that [a petitioner] had waived [an] argument by
failing to raise it before the magistrate.” Pevehouse v. Scibana, 229 F. App’x 795, 796 (10th

2

Congress enacted the Federal Magistrates Act, 28 U.S.C. § 631, in 1968.

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Cir. 2007)(unpublished).3
In One Parcel, the Tenth Circuit, in accord with other Courts of Appeals, expanded
the waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at
1060. The Supreme Court of the United States of America -- in the course of approving the
United States Court of Appeals for the Sixth Circuit’s use of the waiver rule -- noted:
It does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings. The House and Senate Reports
accompanying the 1976 amendments do not expressly consider what sort of
review the district court should perform when no party objects to the magistrate’s
report. See S. Rep. No. 94-625, pp. 9-10 (1976)(hereafter Senate Report); H. R.
Rep. No. 94-1609, p. 11 (1976), U.S. Code Cong. & Admin. News 1976, p. 6162
(hereafter House Report). There is nothing in those Reports, however, that
demonstrates an intent to require the district court to give any more consideration
to the magistrate’s report than the court considers appropriate. Moreover, the
Subcommittee that drafted and held hearings on the 1976 amendments had before
it the guidelines of the Administrative Office of the United States Courts
concerning the efficient use of magistrates. Those guidelines recommended to the
district courts that “[w]here a magistrate makes a finding or ruling on a motion or
an issue, his determination should become that of the district court, unless specific
objection is filed within a reasonable time.” See Jurisdiction of United States
Magistrates, Hearings on S. 1283 before the Subcommittee on Improvements in
Judicial Machinery of the Senate Committee on the Judiciary, 94th Cong., 1st
Sess., 24 (1975)(emphasis added)(hereafter Senate Hearings). The Committee
3

Pevehouse v. Scibana is an unpublished opinion, but the Court can rely on an
unpublished opinion to the extent its reasoned analysis is persuasive in the case before it.
See 10th Cir. R. 32.1(A) (“Unpublished opinions are not precedential, but may be cited for
their persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, . . . and we have
generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its
disposition, we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005)(citations omitted). The Court
concludes that Pevehouse v. Scibana has persuasive value with respect to a material issue,
and will assist the Court in its disposition of this Memorandum Opinion and Order.

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also heard Judge Metzner of the Southern District of New York, the chairman of a
Judicial Conference Committee on the administration of the magistrate system,
testify that he personally followed that practice. See id., at 11 (“If any objections
come in, . . . I review [the record] and decide it. If no objections come in, I
merely sign the magistrate’s order.”). The Judicial Conference of the United
States, which supported the de novo standard of review eventually incorporated in
§ 636(b)(1)(C), opined that in most instances no party would object to the
magistrate’s recommendation, and the litigation would terminate with the judge’s
adoption of the magistrate’s report. See Senate Hearings, at 35, 37. Congress
apparently assumed, therefore, that any party who was dissatisfied for any reason
with the magistrate’s report would file objections, and those objections would
trigger district court review. There is no indication that Congress, in enacting
§ 636(b)(1)(C), intended to require a district judge to review a magistrate’s report
to which no objections are filed. It did not preclude treating the failure to object
as a procedural default, waiving the right to further consideration of any sort. We
thus find nothing in the statute or the legislative history that convinces us that
Congress intended to forbid a rule such as the one adopted by the Sixth Circuit.
Thomas v. Arn, 474 U.S. at 150-52 (emphasis in original)(footnotes omitted).
The Tenth Circuit also noted, “however, that ‘[t]he waiver rule as a procedural bar need
not be applied when the interests of justice so dictate.’” One Parcel, 73 F.3d at 1060 (quoting
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)(“We join those circuits that have
declined to apply the waiver rule to a pro se litigant’s failure to object when the magistrate’s
order does not apprise the pro se litigant of the consequences of a failure to object to findings and
recommendations.” (citations omitted)). Cf. Thomas v. Arn, 474 U.S. at 154 (noting that, while
“[a]ny party that desires plenary consideration by the Article III judge of any issue need only
ask,” a failure to object “does not preclude further review by the district judge, sua sponte or at
the request of a party, under a de novo or any other standard”). In One Parcel, the Tenth Circuit
noted that the district judge had decided sua sponte to conduct a de novo review despite the lack
of specificity in the objections, but the Tenth Circuit held that it would deem the issues waived
on appeal because it would advance the interests underlying the waiver rule. See 73 F.3d at
1060-61 (citing cases from other Courts of Appeals where district courts elected to address

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merits despite potential application of waiver rule, but circuit courts opted to enforce waiver
rule).
Where a party files timely and specific objections to the Magistrate Judge’s
proposed findings and recommendation, on “dispositive motions, the statute calls for a de
novo determination, not a de novo hearing.” United States v. Raddatz, 447 U.S. 667, 674
(1980). “[I]n providing for a ‘de novo determination’ rather than de novo hearing, Congress
intended to permit whatever reliance a district judge, in the exercise of sound judicial
discretion, chose to place on a magistrate’s proposed findings and recommendations.” United
States v. Raddatz, 447 U.S. at 676 (quoting 28 U.S.C. § 636(b) and citing Mathews v.
Weber, 423 U.S. 261, 275 (1976)). The Tenth Circuit requires a “district court to consider
relevant evidence of record and not merely review the magistrate judge’s recommendation”
when conducting a de novo review of a party’s timely, specific objections to the magistrate’s
report. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). “When objections are made to the
magistrate’s factual findings based on conflicting testimony or evidence . . . the district court
must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing.”
Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987).
A district court must “clearly indicate that it is conducting a de novo determination”
when a party objects to the Magistrate Judge’s report “based upon conflicting evidence or
testimony.” Gee v. Estes, 829 F.2d at 1009. On the other hand, a district court fails to meet 28
U.S.C. § 636(b)(1)’s requirements when it indicates that it gave “considerable deference to the
magistrate’s order.” Ocelot Oil Corp. v. Sparro Indus., 847 F.2d 1458, 1464 (10th Cir. 1988). A
district court need not, however, “make any specific findings; the district court must merely
conduct a de novo review of the record.” Garcia v. City of Albuquerque, 232 F.3d 760, 766

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(10th Cir. 2000). “[T]he district court is presumed to know that de novo review is required.
Consequently, a brief order expressly stating the court conducted de novo review is sufficient.”
Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996)(citing In re Griego, 64 F.3d at
583-84). “[E]xpress references to de novo review in its order must be taken to mean it
properly considered the pertinent portions of the record, absent some clear indication
otherwise.” Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d 722, 724 (10th Cir.
1993). The Tenth Circuit has previously held that a district court properly conducted a de novo
review of a party’s evidentiary objections when the district court’s “terse” order contained one
sentence for each of the party’s “substantive claims” and did “not mention his procedural
challenges to the jurisdiction of the magistrate to hear the motion.”
Albuquerque, 232 F.3d at 766.

Garcia v. City of

The Tenth Circuit has explained that brief district court

orders that “merely repeat[] the language of § 636(b)(1) to indicate its compliance” are
sufficient to demonstrate that the district court conducted a de novo review:
It is common practice among district judges in this circuit to make such a
statement and adopt the magistrate judges’ recommended dispositions when they
find that magistrate judges have dealt with the issues fully and accurately and that
they could add little of value to that analysis. We cannot interpret the district
court’s statement as establishing that it failed to perform the required de novo
review.
In re Griego, 64 F.3d at 584.
Notably, because “Congress intended to permit whatever reliance a district judge, in the
exercise of sound judicial discretion, chose to place on a magistrate’s proposed findings and
recommendations,” United States v. Raddatz, 447 U.S. at 676 (emphasis omitted), a district court
“may accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate,” 28 U.S.C. § 636(b)(1). See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d
at 724-25 (holding that the district court’s adoption of the Magistrate Judge’s “particular
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reasonable-hour

estimates”

is

consistent

with

the

de

novo

determination

that

28 U.S.C. § 636(b)(1) and United States v. Raddatz require).
Where, as here, no party objects to the Magistrate Judge’s proposed findings and
recommended disposition, the Court has, as a matter of course and in the interests of justice,
reviewed the Magistrate Judge’s recommendations. In Pablo v. Soc. Sec. Admin., No. CIV
11-0132, 2013 WL 1010401 (D.N.M. Feb. 27, 2013)(Browning, J.), the plaintiff failed to
respond to the magistrate judge’s proposed findings and recommended disposition, and thus
waived his right to appeal the recommendations, but the Court nevertheless conducted a review.
See 2013 WL 1010401, at **1, 4. The Court stated that it generally does not, however, “review
the [Proposed Findings and Recommended Disposition] de novo, because the parties have not
objected thereto, but rather review[s] the recommendations to determine whether they are clearly
erroneous, arbitrary, obviously contrary to law, or an abuse of discretion.” 2013 WL 1010401, at
*4.
The Court, when there are no objections, does not determine independently what it would
do if the issues had come before the Court first, but rather adopts the proposed findings and
recommended disposition where “‘the Court cannot say that the Magistrate Judge’s
recommendation . . . is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of
discretion.’”

2013 WL 1010401, at *3 (alterations omitted)(footnote omitted)(quoting

Workheiser v. City of Clovis, No. CIV 12-0485, 2012 WL 6846401, at *3 (D.N.M. Dec. 28,
2012)(Browning, J.)). See Alexandre v. Astrue, No. CIV 11-0384, 2013 WL 1010439, at *4
(D.N.M. Feb. 27, 2013)(Browning, J.)(“The Court rather reviewed the findings and
recommendations . . . to determine if they are clearly erroneous, arbitrary, obviously contrary to
law, or an abuse of discretion. The Court determines that they are not, and will therefore adopt

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the [Proposed Findings and Recommended Disposition].”); Trujillo v. Soc. Sec. Admin., No.
CIV 12-1125, 2013 WL 1009050, at *5 (D.N.M. Feb. 28, 2013)(Browning, J.)(adopting the
proposed findings and conclusions, and noting that “[t]he Court did not review the ARD de
novo, because Trujillo has not objected to it, but rather reviewed the . . . findings and
recommendation to determine if they are clearly erroneous, arbitrary, obviously contrary to law,
or an abuse of discretion, which they are not”).

This review, which is deferential to the

Magistrate Judge’s work when there is no objection, nonetheless provides some review in the
interest of justice, and seems more consistent with the waiver rule’s intent than no review at all
or a full-fledged de novo review. Accordingly, the Court considers this standard of review
appropriate. See Thomas v. Arn, 474 U.S. at 151 (“There is nothing in those Reports, however,
that demonstrates an intent to require the district court to give any more consideration to the
magistrate’s report than the court considers appropriate.”). The Court is reluctant to have no
review at all if its name is going at the bottom of the order or opinion adopting the Magistrate
Judge’s proposed findings and recommendations.
LAW REGARDING INVOLUNTARY DISMISSAL WITH PREJUDICE
“Pursuant to Federal Rule of Civil Procedure 41(b), a district court may dismiss an action
with prejudice if the plaintiff fails to comply with the Federal Rules of Civil Procedure or any order
of [the] court.” Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003)(quotation omitted).
“Although the language of Rule 41(b) requires that the defendant file a motion to dismiss, the Rule
has long been interpreted to permit courts as here to dismiss actions sua sponte for a plaintiff’s
failure to comply with the rules of civil procedure or court’s orders.” Nasious v. Two Unknown
B.I.C.E. Agents, at Arapahoe County Justice Ctr., 492 F.3d 1158, 1161 n.2 (10th Cir. 2007)
(quoting Olsen v. Mapes, 333 F.3d at 1204 n.3). However, certain criteria must be considered

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before the Court is permitted to dismiss a case with prejudice:
(1) the degree of actual prejudice to the defendant; (2) the amount of interference
with the judicial process; (3) the culpability of the litigant; (4) whether the court
warned the party in advance that dismissal of the action would be a likely sanction
for noncompliance; and (5) the efficacy of lesser sanctions.
Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Ctr., 492 F.3d at 1162
(quoting Olsen v. Mapes, 333 F.3d at 1204). “A district court should ordinarily consider and
address all of the above factors before imposing dismissal as a sanction. However, often some of
these factors will take on more importance than others.” Ehrenhaus v. Reynolds, 965 F.2d 916,
922 (10th Cir. 1992). Ultimately, a district court’s decision to dismiss a case under Rule 41(b) is
reviewed for abuse of discretion. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe
County Justice Ctr., 492 F.3d at 1161. “It is within a court’s discretion to dismiss a case if, after
considering all the relevant factors, it concludes that dismissal alone would satisfy the interests of
justice.” Gripe v. City of Enid, Okl., 312 F.3d 1184, 1188 (10th Cir. 2002)(quoting Ehrenhaus v.
Reynolds, 965 F.2d at 918). “Dismissing a case with prejudice serves at least two purposes. It
penalizes the party whose conduct warrants the sanction and discourages ‘those who might be
tempted to such conduct in the absence of such a deterrent.’” Jones v. Thompson, 996 F.2d 261,
266 (10th Cir. 1993)(quoting National Hockey League v. Metropolitan Hockey Club, Inc., 427
U.S. 639, 643 (1976)).
LAW REGARDING FILING RESTRICTIONS
“[T]he right of access to the courts is neither absolute nor unconditional and there is no
constitutional right of access to the courts to prosecute an action that is frivolous or malicious.”
Sieverding v. Colorado Bar Ass’n, 469 F.3d 1340, 1343 (10th Cir. 2006)(quoting Tripati v.
Beaman, 878 F.2d 351, 353 (10th Cir. 1989)(per curiam)). Thus, “[f]ederal courts have the
inherent power ‘to regulate the activities of abusive litigants by imposing carefully tailored
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restrictions under the appropriate circumstances.’” Sieverding v. Colorado Bar Ass’n, 469 F.3d at
1343.
Injunctions restricting further filing are appropriate where (1) “the litigant’s lengthy
and abusive history” is set forth; (2) the court provides guidelines as to what the
litigant “must do to obtain permission to file an action”; and (3) the litigant received
“notice and an opportunity to oppose the court’s order before it is instituted.”
Ysais v. Richardson, 603 F.3d 1175, 1180 (10th Cir. 2010)(quoting Tripanti v. Beaman, 878 F.3d
at 352). The only caveat to this power is that the restrictions entered must not be overly broad.
See Sieverding v. Colorado Bar Ass’n, 469 F.3d at 1344-45 (filing restrictions limited to courts
within the Tenth Circuit, and to the same subject matter and defendants at issue). See also
Andrews v. Heaton, 483 F.3d 1070, 1077 (10th Cir. 2007)(“The filing restrictions imposed on Mr.
Andrews by the district court are therefore modified to cover only filings in these or future matters
related to the subject matter of Mr. Andrews’s three federal lawsuits.”).
ANALYSIS
Serna objects to the Third PFRD’s recommendation that the Court dismiss her case with
prejudice on the ground that her case is not frivolous or malicious. See Abuse of Discretion
Motion at 1-2.

This Objection does not address the thrust of the Magistrate Judge’s

recommendation, which contemplates the dismissal of Serna’s case for the failure to comply with
the Court’s Memorandum Opinion and Order, and not because the case is frivolous or malicious.
To the contrary, the Court’s most recent Memorandum Opinion and Order explicitly provided
Serna with an opportunity to file an amended complaint against Chisholm, Simon, and Estate of
Becht. See MOO at 91. Rather than comply with the Court’s directives, Serna continued her

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practice of submitting filings that do not have a sound basis in the facts and in the applicable law.4
The Court therefore agrees with Magistrate Judge Ritter that, applying the Ehrenhaus v.
Reynolds criteria to this case, dismissal alone, with prejudice, would satisfy the “interests of
justice.” In reaching this conclusion, the Court has explicitly considered the efficacy of lesser
sanctions, especially in the case of Serna, a pro se party, see Nasious v. Two Unknown B.I.C.E.
Agents, at Arapahoe County Justice Ctr., 492 F.3d at 1163, and nonetheless concludes that
dismissal with prejudice is the only way to adequately communicate to Serna the gravity of her
refusal to comply with Court orders.
Finally, the Court agrees with Magistrate Judge Ritter that filing restrictions against Serna
are appropriate. As Tenth Circuit law requires, Judge Lynch sets forth Serna’s “lengthy and

4

The Court agrees with Magistrate Judge Ritter that Serna’s Motion to Recuse lacks a
sound basis. See Third PFRD at 7. In the Motion to Recuse, Serna expresses dissatisfaction
with the Court’s conclusions in its MOO. See, e.g., Motion to Recuse at 1 (stating that the Court
“has wantonly refused to provide due process and equal protection”); id. at 3 (“Judge
Browning . . . refused to send the Sheriff’s department an order to return Serna’s money.”).
“[T]he law is clear that adverse rulings do not provide a basis for recusal.” Trujillo v. Bd. of
Educ. of the Albuquerque Pub. Sch., No. CIV 02-1146 JB/LFG, 2007 WL 5231709, at *5
(D.N.M. Aug. 24, 2007)(citing Liteky v. United States, 510 U.S. 540 (1994), 555; United States
v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005)), aff’d sub nom. Trujillo v. Bd. of Educ. of
Albuquerque Pub. Sch., 295 F. App’x 885 (10th Cir. 2008). Serna also asserts that there is actual
bias and/or an appearance of impropriety in the Court presiding over a case in which judges are
among the defendants. See Motion for Recusal at 2. The fact that judges are defendants is not
sufficient reason for the Court to recuse. The Court knows some of the Defendants, as it knows
many members of the New Mexico bar and judiciary, because it practiced law and has been on
the bench in the state for many years. The Court does not, however, have a substantially
different relationship with these Defendants than it does with all members of the bar and of the
state judiciary. To the best of the Court’s memory, it has not been in any of the Defendants’
homes or they in the Court’s home. The Court reviewed the Defendants’ names when it was
assigned the case, as it does in every case, and did not see any reason to recuse itself. See
Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995)(stating that “mere familiarity with the
defendant(s)” is not sufficient to require a judge’s recusal). Cf. Sain v. Snyder, No. CIV081019JB/LFG, 2009 WL 1329520, at *4 (D.N.M. Apr. 6, 2009)(“A judge is not required to
automatically recuse himself from a case because a litigant in that case brings an action against
the judge.”).

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abusive history” in the Second PFRD. Second PFRD at 43. The Court’s Memorandum Opinion
and Order adopting those findings then sets out guidelines for Serna to follow to “obtain
permission to file an action” “pro se against the Defendants named [therein]” and provided Serna
with an opportunity to oppose the proposed restrictions. MOO at 92. Rather than respond, Serna
chose to file a frivolous notice of appeal. Serna has only continued these tactics since Magistrate
Judge Ritter entered his Third PFRD. As to Serna’s Objections that the Court should not impose
filing restrictions because her case is not frivolous or malicious, and because the Defendants have
shown no prejudice, see Abuse of Discretion Motion at 4, as the Court explained above, the Court
is not imposing filing restrictions because Serna’s case is frivolous. Rather, the Court imposes
filing restrictions because Serna has failed to comply with the Court’s directives, and has shown
that she is capable of “lengthy and abusive” filing practices. See Sieverding v. Colorado Bar
Ass’n, 469 F.3d at 1343.
IT IS ORDERED that: (i) the Magistrate Judge’s Third Proposed Findings and
Recommended Disposition, filed January 26, 2018 (Doc. 172), is adopted; (ii) this case is
dismissed with prejudice; (iii) Defendants’ Motion to Strike and Dismiss Plaintiff’s Complaint,
filed August 23, 2017 (Doc. 147) and Plaintiff Sernas’ [sic] Motion for Leave to File a Surreply
Objection to Dismiss & Strike Plaintiff’s Complaint, filed August 25, 2017 (Doc. 148) are
denied as moot; (iv) filing restrictions upon Plaintiff Emma Serna as set forth in the Court’s
Memorandum Opinion and Order Adopting the Magistrate Judge’s Proposed Findings and
Recommended Disposition at 91-92, filed September 30, 2017 (Doc. 153) are imposed; and (v) a
Final Judgment pursuant to rule 58 of the Federal Rules of Civil Procedure will be entered
concurrently herewith.

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________________________________
UNITED STATES DISTRICT JUDGE

Parties and counsel:
Emma Serna d/b/a Serna & Associates
Construction Co., LLC
Albuquerque, New Mexico
Plaintiff pro se
Margette Webster
Albuquerque, New Mexico
Defendant pro se
David Webster
Albuquerque, New Mexico
Defendant pro se

Hector Balderas
Attorney General for the State of New Mexico
Ari Biernoff
Assistant Attorney General
Office of the Attorney General
Santa Fe, New Mexico
Attorneys for Defendants State of New Mexico, Carl Butkus, Cindy Molina, Alan Malott,
Beatrice Brickhouse, Bobby Jo Walker, James O’Neal, Joey Moya, Amy Mayer, Garcia
Madeliene, Arthur Pepin, Monica Zamora, Cheryl Ortega, and Nan Nash
William David Grieg
The Law Office of William D. Grieg, LLC
Albuquerque, New Mexico
Attorneys for Defendant Clayton Crowley
Alex Chisolm
Defendant pro se

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Terry R. Guebert
Robert Gentile
Guebert Bruckner, PC
Albuquerque, New Mexico
-- and -Seth Sparks
Rodey, Dickason, Sloan,
Akin & Robb
Albuquerque, New Mexico
Attorneys for Defendant Robert Bob Simon
Estate of Paul F. Becht
Albuquerque, New Mexico
Defendant pro se
John P. Burton
Charles R. Hughson
Rodey, Dickason, Sloan,
Akin & Robb
Albuquerque, New Mexico
Attorneys for Defendant Carl A. Calvert
Kenneth C. Downes
Kenneth C. Downes & Associates, PC
Corrales, New Mexico
Attorneys for Defendants Martha Murillo, Sally Galanter, New Mexico Construction
Industries Division, Robert Unthank, Martin Romero, and Amanda Roybal
John Wells
Defendant pro se

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