Marshall v. Bacon et al
ORDER by District Judge Margaret I. Strickland GRANTING DEFENDANTS' MOTIONS TO DISMISS, ECF Nos. 20 , 21 , 22 , DISMISSING Without Prejudice Plaintiff's Amended Complaint, ECF No. 8 , DENYING AS MOOT All Other Pending Motions, and CLOSING CASE. (jml)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
C. SHANNON BACON, Chief Justice
of the Supreme Court of New Mexico;
MIKE HAMMAN, State Engineer
of the State of New Mexico;
ROLF SCHMIDT-PETERSEN, Director
of the New Mexico Interstate Stream Commission;
HOWARD THOMAS, Chair
of the Disciplinary Board of New Mexico;
ANNE L. TAYLOR, Chief Disciplinary Counsel
for the Disciplinary Board;
JANE GAGNE, Assistant Disciplinary Counsel
for the Disciplinary Board;
in their official capacities only.
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS
THIS MATTER is before the Court on Motions to Dismiss from Defendants C. Shannon
Bacon, ECF No. 20; Mike Hamman and Hannah Riseley-White,1 ECF No. 21; and Howard
Thomas, Anne L. Taylor, and Jane Gagne, ECF No. 22. Plaintiff Victor Marshall responded to all
three motions, respectively, ECF Nos. 45, 47, 46, and Defendants replied, respectively, ECF Nos.
65, 67, 69. Upon due consideration of the parties’ submissions, the record, and the relevant law
the Court will GRANT the Defendants’ Motions.
Rolf Schmidt-Petersen was the former Director of the Interstream State Commission and was sued in his
official capacity only. Hannah Risely-White is the current Director, and in that role filed a Motion to Dismiss alongside
State Engineer Mike Hamman. ECF No. 21.
Unraveling Marshall’s Amended Complaint is no easy task. Over the course of that filing,
Marshall implicates the Public Broadcasting Service (PBS), the Navajo Nation, retired federal
judges, a former United States Senator, various state-level employees and bureaucratic
functionaries, and the now-deceased former Governor of New Mexico, Bill Richardson, in a web
of judicial and political corruption that ultimately ensnared Marshall and led to his suspension
from the practice of law. That list does not include the named Defendants: the Chief Justice of the
Supreme Court of New Mexico; the State Engineer of New Mexico and the Director of the
Interstate Stream Commission for the State of New Mexico (“State Employee Defendants”); and
three members of the Disciplinary Board for the State of New Mexico (“Disciplinary Board
Defendants”). The Court will not recount all of Marshall’s numerous allegations, but those most
salient to the Court’s analysis are as follows:
Marshall worked as an attorney in New Mexico until 2022, when he was suspended by the
Supreme Court of New Mexico. ECF No. 8 (“Amended Complaint”) ¶ 15. Marshall’s suspension
came about over the course of his representation of a group of acequias3 and landowners engaged
in water-rights litigation against the Navajo Nation. ECF No. 8-1 at 283.
Overseeing that case were two retired federal judges: Judge James Wechsler at trial, and
Judge Bruce Black on appeal. Am. Compl. ¶¶ 17, 19. While not directly at issue here, Marshall
spends much of his complaint alleging various constitutional and ethical deficiencies regarding the
The Court accepts as true all well-pleaded factual allegations in Plaintiff’s First Amended Complaint and
draws all reasonable inferences in Plaintiff’s favor for the purposes of Rule 12(b)(6).
appointment of those judges, payments made to those judges, and bias relating to those judges’
former work as attorneys. See id. ¶¶ 16-21.
In 2009, Judge Wechsler approved a settlement between the Navajo Nation, United States,
and the State of New Mexico, over Marshall’s clients’ objections. In re Marshall, 528 P.3d 653,
659-60 (N.M. 2023).4 Marshall, while appealing that ruling, submitted an emergency motion for
disqualification alleging that Judge Wechsler had, inter alia, concealed the fact that he had been a
lawyer for the Navajo Nation; that “disquieting rumors about Judge Wechsler [had circulated] in
the New Mexico Legislature”; and that “the public might reasonably wonder whether the judge
fixed this case for his former client.” Id.; ECF No. 8-1 at 150, 189.
Finding Marshall’s attack on Judge Wechsler’s integrity and impartiality to have been
made without any factual foundation, the New Mexico Court of Appeals imposed sanctions on
Marshall and referred him to the Disciplinary Board of the Supreme Court of New Mexico.
Marshall, 528 P.3d at 660. Marshall filed a motion for rehearing, reiterating his attacks on Judge
Wechsler, which was denied. Id. Marshall then filed a petition for a writ of certiorari before the
Supreme Court of New Mexico, which was also denied. Id.
Plaintiff’s Amended Complaint repeatedly references what he calls “new rules . . . first used against
[Plaintiff] . . . in two recent opinions’” from the Supreme Court of New Mexico (in which that court ruled on Plaintiff’s
suspension). Am. Compl. ¶ 1. Plaintiff has not, however, attached documentation of those proceedings to either his
Complaint or Amended Complaint. To better understand Plaintiff’s claims, the Court relies on (and cites to) decisions
and orders from the Supreme Court of New Mexico throughout this Order.
Typically, a Rule 12(b)(6) motion must be treated as a motion for summary judgment if “matters outside the
pleading are presented to and not excluded by the court.” Fed. R. Civ. P. 12(d). Conversion is not required, however,
when the court considers (1) documents which the complaint incorporates by reference; (2) documents referred to in
the complaint that are central to the plaintiff's claim and whose authenticity is not challenged; and (3) matters of which
a court may take judicial notice. Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010).
Further, a court may consider documents reflecting facts that “are a matter of public record” for the purpose
of “show[ing] their contents, not to prove the truth of the matters asserted therein.” Tal v. Hogan, 453 F.3d 1244, 1264
n.24 (10th Cir. 2006). This includes another court’s publicly filed records “concerning matters that bear directly upon
the disposition of the case at hand.” United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007).
The Supreme Court of New Mexico opinions at issue here are eligible for consideration, without treating the
underlying pleading as a motion for summary judgment, as both (1) documents incorporated into the complaint by
reference and (2) public court proceedings.
Concurrently, Disciplinary Counsel filed charges with the Disciplinary Board,
recommending a public censure of Marshall. Id. at 660; 669. At a hearing before a committee of
the Disciplinary Board, Marshall was found to have violated numerous rules of professional
conduct, and the committee recommended his indefinite suspension from the practice of law (a
Counsel, but one the committee argued was necessary due to Marshall’s continued denial that his
conduct had been improper). Id. at 669. Marshall requested a subsequent hearing on the
committee’s findings, at which a Disciplinary Board hearing panel adopted the findings of the
committee and upheld the committee’s recommendation. Id. That panel then petitioned the New
Mexico Supreme Court to adopt their findings. Id. Marshall replied to that petition, alleging
various constitutional violations by both the hearing committee and panel. Id.
The Supreme Court of New Mexico issued an order suspending Marshall in January of
2022, followed by an opinion outlining their reasoning on March 13, 2023. ECF No. 20-2;
Marshall, 528 P.3d at 653. On April 7, 2022—prior to the issuance of that opinion, but after the
order suspending him had been finalized— Marshall filed a Petition for Writ of Certiorari to the
United States Supreme Court, alleging various constitutional violations on the part of the Supreme
Court of New Mexico in suspending him. See Pet. for Writ of Cert., Marshall v. Supreme Ct. of
N.M., 2022 WL 1093272 (Apr. 7, 2022). The United States Supreme Court denied his petition in
May of 2022. Marshall v. Supreme Ct. of N.M., 142 S. Ct. 2752 (2022).
Marshall filed the initial Complaint in this action on June 7, 2023, after the Supreme Court
of New Mexico issued its order suspending him and its opinion outlining its reasoning for doing
so, and after the Supreme Court of the United States denied his Petition for Writ of Certiorari. ECF
No. 1. Marshall proceeds pro se.
Marshall’s Amended Complaint5 attacks what he terms the “new censorship rules which
have been imposed on all lawyers practicing in New Mexico . . . first used against Victor
Marshall . . . .” Am. Compl. ¶ 1. Plaintiff alleges that the “new rules” were created to “conceal
serious judicial misconduct committed by several judges,” including Judges Wechsler and Black,
as well as Chief Justice C. Shannon Bacon of the Supreme Court of New Mexico. Id.
Marshall seeks numerous forms of relief, to include (1) the vacation of his suspension and
fines; (2) a declaration that the “new rules . . . violate the First Amendment and the due process
clause of the Fifth Amendment”; (3) injunctions against the Disciplinary Board Defendants and
Defendant Bacon; and (4) various injunctions and orders to be levied at the State Employee
Defendants, such as that they “report to the Court within 60 days with proposals to eliminate the
conflict of interest that exists when [their agencies] are paying large sums of money to Judge
Wechsler’s immediate family.” Id. ¶ 123.
Both Disciplinary Board and State Employee Defendants move to dismiss Marshall’s
Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) (invoking sovereign immunity
under the Eleventh Amendment) and 12(b)(6). ECF No. 21 at 1, ECF No. 22 at 1. Defendant Bacon
moves to dismiss Marshall’s complaint on jurisdictional grounds pursuant to the Rooker-Feldman
doctrine (discussed infra III.C) and through application of the doctrines of claim preclusion and
res judicata. ECF No. 20 at 2.
Plaintiff’s initial briefing totaled 455 pages between the Complaint and attached exhibits. ECF No. 1.
Following an order from Magistrate Judge John Robbenhaar to file an amended complaint no longer than 35 pages,
ECF No. 7, Plaintiff filed his operative Amended Complaint, ECF No. 8, on June 27, 2023.
STANDARD OF REVIEW
A. Lack of Subject-Matter Jurisdiction
“Federal courts are courts of limited jurisdiction; they are empowered to hear only those
cases authorized and defined in the Constitution which have been entrusted to them under a
jurisdictional grant by Congress.” Henry v. Off. of Thrift Supervision, 43 F.3d 507, 511 (10th Cir.
1994). “For a court to pronounce upon the meaning or the constitutionality of a state or federal law
when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires.” Steel Co v.
Citizens for a Better Env’t, 523 U.S. 83, 101 (1998).
“[T]he party invoking federal jurisdiction,” generally the plaintiff, “bears the burden of
establishing its existence.” Id. at 104. Rule 12(b)(1) allows defendants to raise the defense of the
court’s “lack of subject-matter jurisdiction” by motion. Fed. R. Civ. P. 12(b)(1).
Rule 12(b)(1) motions to dismiss for lack of subject-matter jurisdiction “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). A facial attack “questions the
sufficiency of the complaint,” and when “reviewing a facial attack . . . a district court must accept
the allegations in the complaint as true.” Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995)
abrogated on other grounds by Cent. Green Co. v. United States, 531 U.S. 425, 437 (2001).
B. Failure to State a Claim
Dismissal under Federal Rule of Civil Procedure 12(b)(6) is appropriate when a plaintiff
has failed to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to
dismiss, a complaint must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 547 (2007). A claim is facially plausible when the pleaded facts “allow
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). The plausibility analysis
is “a context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679.
Further, while reviewing courts “must take all of the factual allegations in the complaint as
true, we are not bound to accept as true a legal conclusion couched as a factual allegation.” Id. at
678 (internal citations omitted). “A court considering a motion to dismiss may begin by identifying
allegations that, because they are mere conclusions, are not entitled to the assumption of truth.” Id.
Typically, pro se litigant filings are held to “a less stringent standard than formal pleadings
drafted by lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v.
Kerner, 404 U.S. 519, 520-21 (1972)). However, the benefit of liberal construal does not extend
to pro se litigants trained as attorneys (such as Plaintiff), regardless of their current licensure status.
See, e.g., McNamara v. Brauchler, 570 F. App’x 741, 743, n. 2 (10th Cir. 2014) (citing Mann. v.
Boatright, 477 F.3d 1140, 1148 n.4 (10th Cir. 2007)).
A. Marshall Advances No Plausible Claims Against State Employee Defendants
Marshall’s Amended Complaint, while primarily a challenge to his suspension,
peripherally attacks several of the parties connected to the water-rights litigation that ultimately
led to his being disciplined. See, e.g., Am. Compl. ¶¶ 108-121 (identifying thirteen causes of
action, of which only two do not arise from the “new rules and sanctions” unrelated to any actions
by the State Employee Defendants). Marshall accuses the State Employee Defendants (and their
respective offices), of “grossly improper conduct” in paying “more than three million dollars in
legal fees to Judge Wechsler’s son and his law firm, while Judge Wechsler presided over water
cases where the State Engineer is a party.” Id. ¶ 85. Marshall also alleges that “Judge Wechsler
engaged in ex parte communications with the State Engineer, and refused to disclose them to the
other parties.” Id. ¶ 89.6 Defendants move to dismiss on the grounds of (1) Rule 12(b)(6) and
(2) Rule 12(b)(1), pursuant to their claimed immunity under the Eleventh Amendment.7 ECF No.
21 at 4, 8. For the reasons that follow, the Court finds that State Employee Defendants lack
sovereign immunity pursuant to the Ex parte Young exception to the Eleventh Amendment.
However, Marshall fails to plausibly allege that State Employee Defendants violated any laws
giving rise to a cause of action, and his claim must thus be dismissed pursuant to Rule 12(b)(6).
1. State Employee Defendants are Not Entitled to Sovereign Immunity
Where defendants move for dismissal on the grounds of sovereign immunity pursuant to
the Eleventh Amendment, courts must address the issue prior to determining the merits of the case.
See, e.g., Harris v. Owens, 264 F.3d 1282, 1288 (10th Cir. 2001) (“Once effectively raised, the
Eleventh Amendment becomes a limitation on our subject-matter jurisdiction, and we may not
Even where Marshall does address actions taken by State Employee Defendants, he primarily does so by
focusing on Judge Wechsler’s alleged misconduct. See, e.g., Am. Compl. ¶ 16 (“[T]he State Engineer has paid more
than $3,000,000 in legal fees to Judge Wechsler’s son and his son’s law firm . . . . It is gross misconduct for a judge
to act on a case if one of the parties is paying large amounts of money to one of the judge’s children”); id. ¶ 89 (“Judge
Wechsler engaged in ex parte communications with the State Engineer, and refused to disclose them to the other
parties.”). But neither Judge Wechsler’s allegedly improper failure to recuse nor his alleged failure to disclose ex parte
contacts with the State Employee Defendants provide a cause of action against the State Employee Defendants
Marshall continues to highlight previous judicial misconduct not at issue here in his Response to State
Employee Defendants’ Motion to Dismiss, citing “the New Mexico Code of Judicial Conduct and federal case law as
regards judicial impartiality, judicial disclosure, and the appearance of impropriety” in support of his position
regarding State Employee Defendants’ wrongdoing. ECF No. 47 at 2. None of those rules relate to State Employee
Defendants conduct. While Marshall alleges that “the state engineer and the ISC created or enabled the judicial
conflicts of interest, and concealed them[,]” that conclusory legal assertion is not supported by factual assertions.
While State Employee Defendants do not expressly link their Eleventh Amendment claim to their invocation
of Rule 12(b)(1), this Court interprets their claim to sovereign immunity as a jurisdictional claim analyzed pursuant
to that rule.
then assume ‘hypothetical jurisdiction’ to reject a plaintiff’s claim on the merits.”) (citation
The Eleventh Amendment generally prohibits citizens from suing states in federal court.
See, e.g., Elephant Butte Irrigation Dist. of N.M. v. Dep’t of Interior, 160 F.3d 602, 607 (10th Cir.
1998). That immunity, however, is not absolute. What is known as the Ex parte Young doctrine
“has carved out an alternative, permitting citizens to seek prospective equitable relief for violations
of federal law committed by state officials in their official capacities.” Lewis v. N.M. Dep’t of
Health, 261 F.3d 970, 975 (10th Cir. 2001) (citing Ex parte Young, 209 U.S. 123, 159-60 (1908)).
The Tenth Circuit has outlined a four-part inquiry allowing suits to proceed under Ex parte
Young: (1) plaintiffs must be suing state officials, rather than the state itself; (2) plaintiffs must
allege a non-frivolous violation of federal law; (3) plaintiffs must be seeking prospective and
equitable relief (rather than retroactive monetary relief); and (4) the suit must not implicate special
sovereignty interests. Id.
The first requirement for suits to proceed pursuant to Ex parte Young is that plaintiffs be
suing state officials, rather than the state itself. Id.; see also Elephant Butte, 160 F.3d at 607-08
(“[T]he Eleventh Amendment generally does not bar a suit against a state official in federal court
which seeks only prospective equitable relief for violations of federal law, even if the state is
immune.”). This prong of the analysis “rests on the premise—less delicately called a ‘fiction,’—
that when a federal court commands a state official to do nothing more than refrain from violating
federal law, he is not the State for sovereign-immunity purposes.” Va. Off. Prot. & Advoc. v.
Stewart, 563 U.S. 247, 255 (2011) (citations omitted). Marshall’s suit expressly names both the
State Engineer of New Mexico and Director of the Interstate Stream Commission in their official
capacities and alleges that their ex parte communications with members of the judiciary violate
federal law. As such, Marshall meets the first requirement of the Ex parte Young doctrine.
The second prong of the Ex parte Young exception requires that plaintiffs assert nonfrivolous violations of federal law. Lewis, 261 F.3d at 975. The frivolity analysis is not contingent
on whether “state officials actually violated federal law; rather, it is whether the plaintiffs have
stated a non-frivolous, substantial claim for relief under federal law . . . .” Harris, 264 F.3d at 1289
(citations omitted) (cleaned up) (emphasis added). The determination of frivolity is distinct from
the plausibility analysis conducted under Rule 12(b)(6): “the question whether the suit states a
claim upon which relief can be granted is neither logically antecedent to nor coincident in scope
with the Eleventh Amendment inquiry.” Id. While plausibility is discussed infra, Marshall does
allege violations of federal law sufficient to establish federal jurisdiction—namely, that State
Employee Defendants committed (1) a conspiracy violative of 42 U.S.C. § 1985 and (2) a failure
to prevent that conspiracy in violation of 42 U.S.C. § 1986. Am. Compl. ¶¶ 119-20.
The third prong of the Ex parte Young analysis requires that litigants seek prospective and
equitable relief. Marshall seeks exactly that: an injunction prohibiting State Employee Defendants
from engaging in ex parte communications with judges in the future. Am. Compl. ¶ 123(G).
Finally, suits may not proceed under the Ex parte Young exception if they infringe upon a
state’s special sovereignty interests. See, e.g., Elephant Butte, 160 F.3d at 612. State Employee
Defendants do not claim such an interest is at issue here. Further, the Court does not find that the
relief Marshall seeks—an injunction prohibiting ex parte communications between state officials
and members of the judiciary—rises to the level of “an excessive intrusion into an area of special
state sovereign interest” sufficient to bar relief under the Eleventh Amendment. Lewis, 261 F.3d
In sum, Marshall has met the requirements to proceed with suit against State Employee
Defendants pursuant to the Ex parte Young exception to the Eleventh Amendment.
2. Marshall’s Amended Complaint Fails to Plausibly State a Claim Against State
The Court now turns to the adequacy of Marshall’s Amended Complaint under Rule
12(b)(6). While the Amended Complaint does not outline State Employee Defendants’ alleged
violations with specificity, Marshall alleges that all Defendants violated 42 U.S.C. §§ 1985 and
1986, by, respectively, (1) engaging in a conspiracy to deprive Marshall and others of their civil
rights and (2) failing to prevent such a conspiracy. Am. Compl. ¶¶ 119-20. Although Marshall
does not identify the subsection of § 1985 the State Employee Defendants allegedly violated, only
subsection (3) refers to the deprivation of rights and privileges, and the Court therefore construes
Marshall’s Amended Complaint as one made specifically under § 1985(3).
To successfully plead a claim under § 1985(3), plaintiffs must plausibly allege (1) a
conspiracy; (2) to interfere with their rights; (3) an act in furtherance of the conspiracy; and (4) a
resulting injury. Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993). Any such actions must
also be motivated by racial or class-based animus. Id. (citing Griffin v. Breckenridge, 403 U.S. 88,
101-02 (1971). The “‘class-based animus’ language of this requirement has been narrowly
construed and does not, for example, reach conspiracies motivated by an economic or commercial
bias.” Id. (quoting United Bhd. of Carpenters & Joiners of Am., Local 610, AFL–CIO v. Scott, 463
U.S. 825, 837 (1983)).
As to the first element, Marshall does generally allege a conspiracy—he simply does not
do so plausibly. Across his Amended Complaint, Marshall inveighs against a vast array of parties,
amply employing innuendo, conclusory allegations, and personal attacks.8 But “Section 1985(3)
conspiracy claims cannot stand on vague and conclusory allegations . . .” and “must be pled with
some degree of specificity.” O’Connor v. St. John’s Coll., 290 F. App’x 137, 141 (10th Cir. 2008)
(cleaned up) (citation omitted). No such specificity exists here: Marshall’s entire Amended
Complaint is insinuation, rather than “the well-pleaded, nonconclusory factual allegation of
parallel behavior” required to give “rise to a ‘plausible suggestion of conspiracy.’” Iqbal, 556 U.S.
at 680 (quoting Twombly, 550 U.S. at 566).
Marshall also fails to allege that State Employee Defendants committed any acts in
furtherance of a conspiracy. State Employee Defendants are correct that “[t]here are no specific
allegations in the Amended Complaint regarding [the State Employee Defendants’] purported
involvement in, or knowledge of, any conspiracy to violate any person’s civil rights.” ECF No. 21
at 3. Beyond his conclusory allegations of bias and impropriety, Marshall does not identify how
either the contracts enacted by the State Engineer’s office nor the alleged ex parte contacts violate
any state or federal law, let alone one giving rise to a successful conspiracy claim under § 1985(3).
Marshall does make a cursory allegation that State Employee Defendants’ conduct violated
Marshall’s procedural due process rights. ECF No. 47 at 4. In support of that argument, Marshall
claims that State Employee Defendants’ ex parte communications with members of the judiciary
are violative of New Mexico Rule of Civil Procedure 1-071.4 (which governs ex parte contacts
between the state and judiciary in the matter of stream adjudication suits). Id. at 3. However, that
See, e.g., Marshall’s accusations that his discipline was an effort to silence his crusade against gubernatorial
and judicial misconduct, Am. Compl. ¶ 14; Marshall’s allegations regarding a Democratic Party conspiracy to target
political opponents, Am. Compl. ¶¶ 105, 116; and Marshall’s repeated allegations regarding Judge Wechsler’s biases
and supposed service as an attorney for the Navajo Nation, Am. Compl. passim. The Court notes that Marshall’s
repeated attacks on Judge Wechsler’s integrity and candor have seen Marshall sanctioned on numerous occasions—a
step this Court declines to take here.
Rule specifically provides for an exception allowing ex parte contacts to take place between the
State Engineer’s office and the judiciary:
Rule 21-209(A) NMRA of the Code of Judicial Conduct [prohibiting ex parte
communications] applies to stream adjudications, except that judges, special
masters and members of their staff in accordance with this rule may communicate
with the plaintiff with respect to matters not addressing the merits of any pending
adjudication that relate to general problems of administration and management of
a pending or impending adjudication or the accurate reporting of water rights claims
in the court's records.
N.M. R. Civ. P. 1-071.4.
As the Committee Commentary on that Rule notes:
The unique nature of a stream system adjudication, including its complexity and
size, require coordination between the courts and the state to effectively manage
the adjudication. At the same time, the courts are regulated by the Code of Judicial
Conduct’s prohibition against ex parte communications concerning pending
matters. This rule expressly permits the court to have limited ex parte contacts with
the [State Engineer’s office] for the purposes of general administration and
management of the adjudication.
Id. (emphasis added).
Further, Marshall fails to identify how the State Employee Defendants’ actions were
motivated by discriminatory intent towards any specific class of people, as is required under
§ 1985. See Tilton, 6 F.3d at 686. Marshall misconstrues the State Employee Defendants as arguing
that the claims against them “should be dismissed because they had no racial or ethnic animus as
a motive for their conduct.” ECF No. 47 at 14. But this is not Defendants’ claim. Rather, State
Employee Defendants correctly note that claims under § 1985 must allege that “some racial, or
perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators’
action . . . .” ECF No. 21 at 6 (quoting Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263,
268 (1993)) (emphasis added). Marshall makes no claim regarding class-based animus—racial or
otherwise. Indeed, Marshall only identifies the group harmed by Defendants’ alleged § 1985
violations as “plaintiff and others[,]” failing to specify a unifying characteristic that could give rise
to any claim of a class-based harm. Am. Compl. ¶ 119.
Lastly, Marshall fails to allege that State Employee Defendants’ actions caused him any
injury. The primary injury alleged in the Amendment Complaint is an infringement on his
constitutional rights, stemming from what he terms the “new rules” promulgated by the Supreme
Court of New Mexico (and attendant sanctions and fines). See generally Am. Compl. ¶¶ 108-18.
State Employee Defendants are not alleged to have caused that injury. Even where Marshall
focuses his attention on wrongdoing by the State Employee Defendants, he fails to explain how
their actions—in the form of enacting contracts for services and communicating with Judge
Wechsler ex parte— have caused him any harm.
Taken in sum, Marshall’s claims against State Employee Defendants do not amount to a
plausible § 1985 claim. And absent an underlying conspiracy, Marshall’s § 1986 claim necessarily
fails. See Brown v. Reardon, 770 F.2d 896, 905 (10th Cir. 1985) (“§ 1986 is dependent upon the
validity of a § 1985 claim.”). As Marshall’s Amended Complaint fails to plausibly allege a credible
claim under §1985 (and resultantly, fails to plausibly allege a claim under § 1986), Marshall’s
claims against State Employee Defendants are dismissed.
B. Disciplinary Board Defendants are Entitled to Eleventh Amendment Sovereign
Marshall alleges several procedural and constitutional errors on the part of Disciplinary
Board Defendants regarding the disciplinary proceedings against him. Am Compl. ¶ 66, ECF No.
8-1 at 296-98. Disciplinary Board Defendants move to dismiss on the grounds of Federal Rules
of Civil Procedure 12(b)(6), for failure to state a claim, and 12(b)(1), pursuant to their Eleventh
Amendment sovereign immunity. ECF No. 22 at 1-2. Between ad hominem attacks on Disciplinary
Board Defendants’ professional integrity9 and fealty to the constitutions of the United States and
the State of New Mexico,10 Marshall’s Response alleges that Disciplinary Board Defendants are
engaged in ongoing violations of federal law by continuing to prosecute him in state court. See
ECF No. 46 at 2.
The requirements for suits to overcome Eleventh Amendment sovereign immunity
pursuant to Ex parte Young are discussed supra Section III.A. To briefly recount, litigants must
(1) be suing state officials, rather than the state itself; (2) alleging a non-frivolous violation of
federal law; (3) seeking prospective and equitable relief; and (4) the suit must not implicate special
sovereignty interests. Lewis, 261 F.3d at 975.
Marshall does not overcome the Eleventh Amendment’s barrier to suit as to Disciplinary
Board Defendants. Marshall’s Amended Complaint meets two of the criteria necessary for the Ex
parte Young exception to apply: he is alleging a non-frivolous violation of federal law, Am.
Compl. ¶¶ 119-20 (identifying all Defendants as having violated §§ 1985 and 1986), and his suit
implicates no special sovereignty interests. Marshall fails, however, to meet the other
In contrast to Marshall’s claims against State Employee Defendants, Marshall’s claims
against Disciplinary Board Defendants seek relief impermissible under the terms of Ex parte
Young itself. The Supreme Court has recently emphasized that Ex parte Young does not
traditionally allow for injunctions against the “machinery” of state supreme courts—such as the
See, e.g., ECF No. 46 at 6 (accusing Disciplinary Board Defendants of having “consciously disregarded the
controlling authorities . . .”).
Id. at 5 (“[D]efendants seem to have forgotten, that all public officials, judges, and lawyers have taken an
oath to support the constitution of the United States and the constitution and laws of [New Mexico].”) (citation
Disciplinary Board. See Whole Women’s Health v. Jackson, 595 U.S. 30, 39 (2021). Indeed, “[a]s
Ex parte Young put it, ‘an injunction against a state court’ or its ‘machinery’ ‘would be a violation
of the whole scheme of our Government.’” Id. (quoting Ex parte Young, 209 U.S. at 163). Rather,
“[i]f a state court errs in its rulings . . . the traditional remedy has been some form of appeal.” Id.
To that point, Marshall did appeal the Disciplinary Board’s rulings and recommendations
to the Supreme Court of New Mexico—who rejected his claims. See In re Marshall, 528 P.3d at
653. Marshall then sought relief from the United States Supreme Court, who declined his petition
for writ of certiorari. Marshall, 142 S. Ct at 2752. Marshall now attempts a third attack on the
Disciplinary Board’s proceedings, this time collaterally. But Ex parte Young is not a vehicle for
him to do so.
Marshall’s claims against Disciplinary Board Defendants also cannot advance in that they
seek only retroactive relief. His Amended Complaint asks this Court for “injunctions” against
Disciplinary Board Defendants regarding the enforcement of the sanctions against him and
suspension of his license. Am. Compl. ¶ 123(D). Such claims theoretically entail prospective
equitable relief. But Disciplinary Counsel are not the party against whom such sanctions and
injunctions can be levied: attorney suspension is a matter for the Supreme Court of New Mexico.
See N.M. R. Gov. Disc. 17-206(A).
At the time that court adopted the findings of the Disciplinary Board, the Disciplinary
Board was no longer the appropriate party from whom Marshall could seek relief. As such, the
only step this Court could take regarding Disciplinary Board Defendants would be to retroactively
critique proceedings already conducted, rather than to address ongoing violations of federal law.
To the extent that Marshall also takes issue with ongoing, separate disciplinary proceedings, those
claims are not appropriately raised in his Amended Complaint.
Disciplinary Board Defendants are thus entitled to sovereign immunity under the Eleventh
Amendment, and Marshall’s claims against them are necessarily dismissed without prejudice for
lack of jurisdiction. As the Court lacks jurisdiction over Marshall’s claims against the Disciplinary
Board Defendants, the Court declines to address Disciplinary Board Defendants’ 12(b)(6)
argument on the merits.
C. This Court Does Not Have Jurisdiction Over Plaintiff’s Claims Against Defendant
Bacon Pursuant to the Rooker-Feldman Doctrine
Marshall alleges that his suspension is the result of “new rules” articulated by the Supreme
Court of New Mexico, whose “main purpose and effect is to cover up judicial misconduct.” Am.
Compl. ¶ 69. Namely, Marshall alleges that Defendant Bacon suspended Marshall as a retaliatory
tactic to cover up wrongdoing by herself and her former employer, the now-deceased former
Governor of New Mexico Bill Richardson.11
Defendant Bacon moves to dismiss on the grounds that Marshall’s claims are barred by the
Rooker-Feldman doctrine, claim preclusion, and res judicata, and that Bacon, as an individual
defendant, cannot provide Marshall with the relief he seeks. ECF No. 20 at 2. Marshall responds
that the relevant sanctions and proceedings are ongoing, and that his claims are thus not barred by
Rooker-Feldman. See ECF No. 45. Marshall further argues that his challenge is a general
constitutional one, outside of the scope of Rooker-Feldman entirely. Id. at 8. But Defendant
Marshall accuses Bacon of the following: “[A]cting as [former Governor of New Mexico Bill]
Richardson’s protector, by covering up the pay to play frauds that Richardson committed, and to get rid of challenges
to Richardson’s water deal,” Am. Compl. ¶ 14; “retaliating against Marshall through suspending him from the practice
of law[,]” id. ¶ 15; “[writing] opinions to cover up for Bill Richardson’s wrongdoing, to cover up for herself as
Richardson’s lawyer, to advance Richardson’s initiatives, and to retaliate against Marshall and his clients[,]” ECF No.
8-1 at 305; failing to make “disclosures about actual or potential conflicts of interest, or any other grounds for possible
recusal[,]” id.; “tak[ing] away Marshall’s basic constitutional protections[,]” id. at 299; “bar[ring] Marshall from
speaking in his own defense . . . unless he first surrenders the protections of procedural due process[,]” id.; and
numerous other ethical and legal violations.
Bacon’s invocation of Rooker-Feldman is appropriate: this Court does not have jurisdiction over
what is functionally a challenge to fully adjudicated state proceedings, despite Marshall’s efforts
to circumvent Rooker-Feldman’s jurisdictional bar.
As articulated by the Supreme Court, the Rooker-Feldman doctrine serves as a bar to “cases
brought by state-court losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and rejection
of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).
Rooker-Feldman is a “narrow” doctrine, and the Supreme Court has cautioned against the tendency
of lower courts to expand its scope. See Lance v. Dennis, 546 U.S. 459, 464 (2006). The present
instance, however, is a paradigmatic example of the kind of case that Rooker-Feldman serves to
prohibit: a transparent challenge to final state court proceedings by a losing party.
Marshall’s Amended Complaint attempts to circumvent Rooker-Feldman by challenging
what he terms “new rules” supposedly promulgated by the Supreme Court of New Mexico. Am.
Compl. passim. Upon inspection, however, it becomes clear that Marshall’s Amended Complaint
is a collateral attack on the disciplinary proceedings against him, rather than the kind of general
constitutional challenge permitted under Rooker-Feldman. This is made most obvious by the fact
that the alleged “new rules” are found not in the form of regulations or orders issued by the
Supreme Court of New Mexico, but exclusively in the form of suspension proceedings against
Marshall. See, e.g., Am. Compl. ¶ 1 (claiming that the new rules were “first used against Victor
Marshall, and now they have been institutionalized and extended to all attorneys and their clients,
in [the suspension opinions.]”); id. ¶ 36 (“The new rules and sanctions are set forth in [the
suspension opinions and disciplinary report.]”).
To be sure, Marshall attempts to avoid this fact. See, e.g., Marshall’s oblique references to
“the new rules . . . issued on March 13 and 16, 2023”—namely, the proceedings against him, Am.
Compl. ¶ 123(A); and his request that this Court issue “preliminary and permanent injunctions
against enforcement of the new rules”—namely, his suspension, Am. Compl. ¶ 123(D). However,
couching his challenge to a final state court adjudication in terms of constitutional generality does
not transform Marshall’s claims into ones over which this Court may exercise jurisdiction.
Marshall also claims that the requisite element of finality is not met, because he is subject
to ongoing, separate proceedings related to his suspension. ECF No. 45 at 1-2. He is wrong. As
Defendant Bacon’s Motion to Dismiss accurately notes, “[w]hen Marshall filed his complaint in
this case, all issues of law and fact related to his suspension were determined, the Supreme Court
of New Mexico had finally disposed of the case, Marshall had petitioned the United States
Supreme Court for a writ of certiorari, and that Court had denied review.” ECF No. 20 at 10. Any
subsequent proceedings do not bear on the finality of the suspension rulings specifically challenged
by Marshall in his Amended Complaint. Further, while Marshall postulates that the denial of his
Petition for Writ of Certiorari “may have been based on a lack of finality,” ECF No. 45 at 7, the
Court will not indulge that speculation.
Finally, the Court notes that none of the relief sought by Marshall can be granted by
Defendant Bacon as an individual, even in her official capacity. See ECF No. 20 at 13-14. Only
the Supreme Court of New Mexico—as a body writ large—can grant Marshall the relief he seeks
as to his suspension, fines, and the sanctions against him. As such, any claims against Defendant
Bacon individually likely fail to meet the requirements of Rule 12(b)(6), and Marshall’s failure to
join an indispensable party—the Supreme Court of New Mexico—may further render his
complaint subject to dismissal under Federal Rule of Civil Procedure 12(b)(7). However, because
Marshall’s underlying claim is barred by Rooker-Feldman, the Court declines to fully address
those issues, as well as the issues of claim preclusion and res judicata.
For the foregoing reasons, Marshall’s claims against Defendant Bacon must be dismissed.
Dismissals on Rooker-Feldman grounds are without prejudice. See Atkinson-Bird v. Utah, Div. of
Child & Fam. Servs., 92 F. App’x 645, 648 (10th Cir. 2004) (“Where the Rooker–Feldman
doctrine applies, a federal court lacks jurisdiction to reach the merits and, thus, has no power but
to dismiss the case without prejudice . . .”).
For the foregoing reasons, it is HEREBY ORDERED that:
1. Defendant C. Shannon Bacon’s Motion to Dismiss, ECF No. 20, is GRANTED
consistent with this Order;
2. Defendants Mike Hamman and Hannah Riseley-White’s Motion to Dismiss for Failure
to State a Claim and Eleventh Amendment Immunity, ECF No. 21, is GRANTED
consistent with this Order;
3. Defendants Howard Thomas, Anne L. Taylor, and Jane Gagne’s Motion to Dismiss
Plaintiff’s First Amended Complaint for Failure to State a Claim and as Barred by
Immunity, ECF No. 22, is GRANTED consistent with this Order;
4. Plaintiff’s Amended Complaint is hereby DISMISSED WITHOUT PREJUDICE;
All pending motions are DENIED as moot; and
This case is now CLOSED.
UNITED STATES DISTRICT JUDGE
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