Poel v. State of New Mexico

Filing 39

MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales granting 16 Defendant's Amended Motion to Dismiss; denying 27 Plaintiff's Motion for Oral Argument; and denying 28 Defendant's Motion to Strike. Show Cause Hearing set for 1/18/2018 at 01:30 PM in Las Cruces - 420 Mimbres Courtroom (North Tower) before District Judge Kenneth J. Gonzales. Plaintiff is required to appear in person; Defendant may appear at its discretion. (tah)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MARTIN H. POEL,
Plaintiff,
vs.

Civ. No. 17-00185 KG/CG

STATE OF NEW MEXICO,
Defendant.

MEMORANDUM OPINION AND ORDER
This matter comes before the Court upon Defendant’s Amended Motion to Dismiss
(Motion to Dismiss) under Fed. R. Civ. P. 12(b)(1) and (6), filed on March 1, 2017. (Doc. 16).
Plaintiff filed a response on March 5, 2017, and the State of New Mexico (Defendant) filed a
reply on March 19, 2017. (Docs. 18, 24). Also before the Court is Plaintiff’s Motion for Oral
Argument (Motion for Oral Argument), filed March 22, 2017; Defendant’s Motion to Strike that
Motion as an Unauthorized Sur-Reply (Motion to Strike), filed March 23, 2017; and the
responses and replies thereto. (Docs. 27- 30). Having reviewed the motions, briefs, and relevant
law, the Court will grant the Motion to Dismiss, deny all other relief, and require Plaintiff to
show cause why sanctions or filing restrictions should not be imposed.
I. Background
This case commenced with Plaintiff’s Complaint for Violations of the First, Fifth, and
Fourteenth Amendments to the United States Constitution, Retaliation, and Questions of the
Constitutionality of Certain New Mexico Rules of Discipline (Complaint), filed February 6, 2017.
(Doc. 1). Plaintiff asserts Defendant violated the Constitution in connection with his prior
proceedings before New Mexico’s Third Judicial District Court (State Court), the Federal

District Court (Federal Court), and the New Mexico Supreme Court Disciplinary Board
(Disciplinary Board). (Doc. 1).
According to the Complaint, Plaintiff spent most of his career as a dentist in Las Cruces,
New Mexico. (Doc. 1) at ¶ 4. Fourteen years ago, he became involved in a dispute with an
insurance company. Id. at ¶ 19, 25, 28, 30. The dispute unfortunately spurred five lawsuits and
occupied much of his time during retirement. Id.
Plaintiff filed the first lawsuit through counsel in 2003. See Poel v. United Concordia, D307-CV-2003-1487. He asserted claims against United Concordia Insurance Co. (United
Concordia) for violations of the New Mexico Dental Health Care Act (Dental Care Act). (Doc.
1) at ¶¶ at 8, 19. Plaintiff alleges he was compelled to sue because Defendant refused to enforce
the statute. Id. at ¶ 19. He also alleges that during the litigation, the State Court refused to
enforce its own discovery order, causing his attorneys to bill hundreds of thousands of dollars
without his consent. Id. at ¶¶ 20-21. Plaintiff asserts he eventually had to settle with United
Concordia as a result of such misconduct. Id. at ¶¶ 23-24.
Notwithstanding the settlement, Plaintiff was still dissatisfied. In 2006, he obtained a law
degree to “file a petition for contempt on behalf of dentists who were harmed by” United
Concordia’s policies. (Doc. 18) at 4.1 That same year, Plaintiff sued his former attorneys in
State Court “to show lack of due process during the [United Concordia] litigation.” (Doc. 1) at ¶
25; Poel v. Vogel, et al, D-307-CV-2006-1638. The attorneys countersued for malicious abuse
of process. (Doc. 1) at ¶ 26. The State Court dismissed Plaintiff’s claims and entered a

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The Court considered all facts and State Court documents proffered by Plaintiff, including additional facts in his
Response to Motion to Dismiss and Motion for Oral Argument. (Docs. 18, 27). The facts do not change the result
of this ruling, and the exhibits are subject to judicial notice. See Pace v. Swerdlow, 519 F.3d 1067, 1072 (10th Cir.
2008) (noting that courts may take “judicial notice of all of the materials in the state court’s file” when ruling on
motion to dismiss).

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$400,000 judgment against him for malicious abuse of process (Money Judgment). Id. at ¶¶ 2627, 39-44.
Plaintiff filed his third State Court lawsuit in 2010, seeking a writ of mandamus requiring
the New Mexico Attorney General to enforce the Dental Care Act. Id. at ¶ 18; Poel v.New
Mexico Attorney General. D-307-CV-2010-3265. He now alleges the State Court again
improperly denied the petition. (Doc. 1) at ¶ 18. A year later, Plaintiff filed a fourth suit, this
time in Federal Court, against his attorneys and the judge who entered the Money Judgment. Id.
at ¶ 28; Poel v. Webber, et al, Civ. No. 11-882 JB/GBW.2 Plaintiff asserted various
constitutional claims and alleged his attorneys conspired with the judge in the original 2003
United Concordia litigation. (Doc. 1 in Civ. No. 11-882). The Honorable James O. Browning
dismissed the complaint because it failed to state a claim upon which relief can be granted.
(Docs. 73, 75 in Civ. No. 11-882).
In 2013 the Disciplinary Board initiated proceedings to revoke Plaintiff’s law license on
the grounds that he had no factual or legal basis for the lawsuit he filed in federal court. (Doc. 1)
at ¶ 30; (Doc. 18-2); In the Matter of Martin H. Poel, Disciplinary No. 09-2013-675. Plaintiff
now alleges the proceeding was initiated in retaliation and “solely because Plaintiff sued
[Defendant] in Federal Court.”3 (Doc. 1) at ¶ 30. The Disciplinary Board found Plaintiff
violated three Rules of Professional Conduct: NMRA 16-301 (frivolous suits); NMRA 16802(A) (misstatements about a judge); and NMRA 16-804(D) (conduct prejudicial to the
administration of justice). Id. at ¶ 34; (Doc. 18-3). Plaintiff was placed on probation, censured,

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Plaintiff appears to believe the lawsuit involved Defendant, but the Federal Court docket reflects Defendant was
not a named party. Id. at ¶ 28.
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See supra, footnote 3.

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and ordered to pay $2,193.48 in costs. (Doc. 1) at ¶ 34; (Doc. 18-3). Plaintiff elected not to
pursue re-instatement of his law license and is no longer a member of the bar. (Doc. 27) at 3.
Based on the foregoing, Plaintiff now asserts Defendant violated the Constitution by: (1)
refusing to enforce the Dental Care Act; (2) denying him due process during the four prior
lawsuits; (3) retaliating for those lawsuits by initiating the disciplinary proceeding; (4)
suspending his law license; and (5) enacting the above disciplinary rules. Plaintiff asks this
Court to “[d]eclare the [$400,000] Judgment in Poel v. Vogel et al D-307-CV-2006-01638 to be
void,” and “[d]eclare Rules 16-301, 16-802(A), and [1]6-804(D) NMRA to be unconstitutional.”
(Doc. 1) at p. 11. Plaintiff also appears to seek $400,000 in money damages for the alleged
constitutional violations, unless the Court determines sovereign immunity applies. (Doc. 18) at
23; (Doc. 27) at p. 4-5.
Defendant moved to dismiss this action pursuant to Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6), and for sanctions. (Doc. 16). Defendant contends Plaintiff’s claims are
barred by, inter alia, sovereign immunity, the Rooker-Feldman doctrine, and a lack of standing.
Id. Defendant also asserts the complaint fails to state a cognizable claim. Id. Plaintiff opposes
the Motion to Dismiss in its entirety and requests oral argument. (Docs. 18, 27). Defendant
argues the Motion for Oral Argument is really an unauthorized surreply. (Doc. 28).
II. Standard of Review
Where, as here, a defendant seeks dismissal under both Rules 12(b)(1) and 12(b)(6),
Plaintiff must first carry the burden of proving the Court has jurisdiction. See Mounkes v.
Conklin, 922 F.Supp. 1501, 1505 (D. Kan. 1996). Rule 12(b)(1) requires dismissal where the
Court lacks subject matter jurisdiction over the claims. “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

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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)). Defendant presents a facial challenge,
which requires the Court to accept the factual allegations contained in the complaint. Id.
Once jurisdiction is established, the claims may still be subject to dismissal under Rule
12(b)(6). That rule authorizes a court to dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, a
plaintiff’s complaint must contain sufficient facts that, if assumed to be true, state a claim to
relief that is plausible on its face. See Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010)
(citations omitted). A complaint need not set forth detailed factual allegations, yet a “pleading
that offers labels and conclusions or a formulaic recitation of the elements of a cause of action”
is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). While a pro se
plaintiff’s allegations must be liberally construed, pro se parties must follow the same rules of
civil procedure as any other litigant. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
III. Discussion
A. Motion for Oral Argument and Motion to Strike
The Court first turns to Plaintiff’s Motion for Oral Argument which he filed “to clarify[]
the legal arguments and facts presented for adjudication.” (Doc. 27) at 1. It is clear that in filing
this motion, Plaintiff is attempting to refute the arguments in Defendant’s reply brief and to
clarify the relief Plaintiff is seeking in this suit. (Doc. 27) at 2-6. Defendant asserts this motion
effectively is a surreply and should be struck because it was filed without authorization and there
are no “new arguments … raised in [Defendant’s] reply brief.” Walker v. THI of New Mexico at

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Hobbs Center, No. CIV 09-0060 JB/KBM, 2011 WL 2728344, at *1 (D.N.M. July 6, 2011). See
also D.N.M. LR-Civ 7.4(b) (“The filing of a surreply requires leave of the Court.”).
This Court remains sensitive to a party’s right to be heard which necessary, and this is
just as true when a party proceeds pro se. Moreover, this may very well be Plaintiff’s final
opportunity to raise certain issues. See Section C (discussing the possibility of filing
restrictions). However, in light of the comprehensive filings already on the record, the Court
finds that a hearing would not materially assist in determining the Motion to Dismiss. Therefore,
the Court will deny the request for oral argument, treat the remainder of the Motion for Oral
Argument as an authorized surreply, and deny the Motion to Strike.
B. Motion to Dismiss
Construed liberally, the Complaint requests three possible types of relief: (1) a judgment
that Defendant violated Plaintiff’s constitutional rights; (2) an order invalidating the Money
Judgment; and (3) an order invalidating the disciplinary rules used to suspend Plaintiff’s law
license. Defendant argues the Court lacks jurisdiction to grant such relief. As discussed below,
the Court agrees.
1. Constitutional Claims Against the State of New Mexico
In the first three counts of the Complaint, Plaintiff asserts constitutional claims for
retaliation, “breach of duty,” and violations of the First Amendment and the Due Process Clause.
Defendant argues the Court lacks jurisdiction over these claims based on sovereign immunity.
The doctrine of sovereign immunity bars “a citizen from suing his own State under the federalquestion head of [subject-matter] jurisdiction.” Alden v. Maine, 527 U.S. 706, 727 (1999).
Sovereign “immunity applies regardless of whether a plaintiff seeks declaratory or injunctive
relief, or money damages.” Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1252

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(10th Cir. 2007) (citation omitted). There are three exceptions to the sovereign immunity
doctrine: (1) the state may consent to suit in federal court; (2) Congress may abrogate a state’s
sovereign immunity; or (3) a plaintiff may seek prospective relief from an individual state officer
acting in their official capacity for an ongoing violation of federal law. Id.
Plaintiff argues Defendant consented to suit by failing to enact legislation expressly
conferring immunity, and that Congress abrogated Defendant’s sovereign immunity through 42
U.S.C. § 1983. The Court disagrees. The State legislature does not need to enact legislation
conferring immunity because it already exists by virtue of the United States Constitution. See
Alden, 527 U.S. at 728 (noting that “sovereign immunity derives … from the structure of the
original Constitution itself”). Further, Section 1983—which is the only “remedial vehicle for
raising claims based on the violation of constitutional rights”—does not authorize suits against
the State. Brown v. Buhman, 822 F.3d 1151, 1161 n. 9 (10th Cir. 2016). “A cause of action
under section 1983 requires the deprivation of a civil right by a ‘person’ acting under color of
state law.” McLaughlin v. Bd. of Trustees, 215 F.3d 1168, 1172 (10th Cir. 2000). The Supreme
Court has expressly held “that neither a State nor its officials acting in their official capacities are
‘persons’ under § 1983.” Id. (quoting Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71
(1989)). Therefore, the constitutional claims in Counts I, II, and III of the Complaint must be
dismissed.4
2. Claims to Invalidate the Money Judgment
Plaintiff also asks the Court to void the Money Judgment because it allegedly is “not
supported by the law or substantial evidence.” (Doc. 1) at ¶ 44, p. 11. Defendant challenges the
Court’s jurisdiction to grant such relief under the Rooker-Feldman doctrine. See Campbell v.

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It is worth noting that even if Defendant State of New Mexico could face liability, the State itself was not a party to
any of the prior lawsuits and did not engage in the most of the alleged wrongdoing.

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City of Spencer, 682 F.3d 1278, 1281 (10th Cir. 2012) (noting that Rooker-Feldman is
jurisdictional bar). The Rooker-Feldman doctrine prevents “state-court losers [from]
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). In other words, the
Court may not examine “the proceedings already conducted by the ‘lower’ tribunal to determine
whether it reached its result in accordance with law.” Bolden v. City of Topeka, 441 F.3d 1129,
1143 (10th Cir. 2006). In contrast, where a plaintiff is not attacking a state court judgment itself,
the Rooker-Feldman doctrine does not apply. Id. 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 preclusion.” Exxon Mobil Corp., 544 U.S. at 293 (2005).
In other words, the critical inquiry here is whether the Complaint is attacking the state court
judgment itself, or whether it raises a new, independent claim that could potentially undermine
the judgment.
Plaintiff contends he is not asking this Court to overturn the Money Judgment, but rather,
he seeks relief from the judgment under Fed. R. Civ. P. 60(b). (Doc. 18) at p. 19. This argument
is a futile exercise in semantics. Granting the requested relief would necessarily require a
determination “that the state court wrongfully entered its judgment,” and is therefore barred by
the Rooker-Feldman doctrine. Campbell v. City of Spencer, 682 F.3d 1278, 1283 (10th Cir.
2012). See also Burnett v. Amrein, 243 Fed. App’x 393, 395 (10th Cir. 2007) (“Fed.R.Civ.P.
60(b) does not authorize a federal district court to relieve the [plaintiff] of a judgment entered in

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state court, … because any such action would violate the Rooker–Feldman doctrine.”).
Plaintiff’s claim seeking a declaration that the Money Judgment is void is dismissed.
3. Claims to Invalidate the Disciplinary Rules
Count IV of the Complaint is a challenge to the constitutionality of NMRA 16-301, 16802(A), and 16-804(D), the disciplinary rules used to suspend his law license. (Doc. 1) at ¶¶ 6366. Specifically, Plaintiff argues these rules are so vague that they allow the Disciplinary Board
to ignore the rules of evidence and discipline unpopular attorneys by simply characterizing a
claim as “frivolous” or “reckless.” Id. Defendant again seeks dismissal under the RookerFeldman doctrine.
A state bar disciplinary order is the “functional equivalent of a state-court judgment”
under Rooker-Feldman. Mosby v. Ligon, 418 F.3d 927, 932 (8th Cir. 2005). Thus, “the Rooker–
Feldman doctrine precludes an attorney from challenging the result of his or her state
disciplinary hearing in a lower federal court, including attacking the process leading to the
decision.” Kline v. Biles, 861 F.3d 1177, 1181 (10th Cir. 2017) (citations omitted); see also In re
Smith, 287 Fed. App’x 683 (10th Cir. 2008) (concluding that Rooker-Feldman precluded
attorney’s federal claim challenging his disbarment).
Count IV does not explicitly challenge the prior disciplinary proceeding. However, the
Tenth Circuit has applied Rooker-Feldman to indirect attacks on disciplinary orders where it is
“clear from [the] complaint that … [the discipline] … is the source of the injuries for which
[plaintiff] … seeks relief.” Vallaro v. Supreme Court of Colo., 176 F.3d 490 (10th Cir. 1999);
see also Smith v. Mullarkey, 67 Fed. App’x. 535, 538 (10th Cir. 2003) (rejecting disciplined
attorney’s “attempts to re-frame the issues so that [the] claims fall outside the ambit of RookerFeldman”). Here, the potential harms posed by the challenged disciplinary rules are identical to

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the injuries Plaintiff allegedly suffered during the disciplinary proceeding. (Doc. 1) at ¶¶ 45-62.
Therefore, to the extent Plaintiff seeks retroactive relief, the Rooker-Feldman doctrine bars
Count IV.
Further, to the extent Count IV seeks prospective relief that is wholly unrelated to the
prior disciplinary proceeding, Plaintiff nevertheless cannot prevail. The Tenth Circuit recently
has held that a suspended attorney cannot challenge a disciplinary rule as impermissibly vague
based on the “hypothetical future” possibility that it may, one day, apply. Kline, 861 F.3d 1182
(dismissing plaintiff’s claim that disciplinary rule could “mean anything” and was subject to
“freewheeling application”). Unless and until the attorney is actually subject to the disciplinary
rules, such challenge does not “present a justiciable case or controversy.” Id.
Here, Plaintiff is no longer a member of the bar and has declined to seek reinstatement.
(Doc. 27) at 3. The Court therefore lacks jurisdiction over any prospective challenge to the
ethical rules governing the legal profession raised by Count IV of the Complaint. See also
Jordan v. Sosa, 654 F.3d 1012, 1019 (10th Cir. 2011) (“Article III of the United States
Constitution limits the jurisdiction of federal courts to the adjudication of ‘Cases’ or
‘Controversies.’”).
Having determined it lacks jurisdiction over each potential claim, the Court will dismiss
the Complaint pursuant to Rule 12(b)(1). This dismissal is without prejudice because the Court
did not reach the merits of Plaintiff’s underlying claims. See Brereton v. Bountiful City Corp.,
434 F.3d 1213, 1218 (10th Cir. 2006) (“[D]ismissals for lack of jurisdiction should be without
prejudice because the court, having determined that it lacks jurisdiction over the action, is
incapable of reaching a disposition on the merits of the underlying claims.”).
C. Sanctions

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Defendant asks that if the Complaint is dismissed, the Court should sanction Plaintiff for
abuse of process. (Doc. 16) at 26. Federal courts have inherent authority to impose sanctions
when a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Sally
Beauty Co. v. Beautyco, Inc., 372 F.3d 1186, 1189 (10th Cir. 2004) (quotations and citation
omitted). Federal courts can also regulate vexatious filings by imposing carefully tailored filing
restrictions. See Andrews v. Heaton, 483 F.3d 1070, 1077 (10th Cir. 2007). Restrictions on
future filings may be imposed where: (1) the litigant has a lengthy and abusive history; (2) the
court provides guidelines as to what the litigant may do to obtain permission to file an action;
and (3) the litigant receives notice and an opportunity to oppose the court’s order before it is
implemented. Tripati v. Beaman, 878 F.2d 351, 353-54 (10th Cir. 1989).
This is Plaintiff’s fifth lawsuit concerning United Concordia’s insurance practices, and (at
least) the second lawsuit seeking to invalidate the Money Judgment. Plaintiff’s filings indicate
he is well aware that the United Concordia issue has been decided. Further, his law license was
suspended the last time he sought to invalidate the Money Judgment. Nevertheless, Plaintiff
continues to assert variations of these same claims, using a complaint that replicates most of the
allegations his prior lawsuits.
Based on this history, the Court is persuaded that some sanction may be necessary. The
Court will therefore require Plaintiff to show cause within 21 days of entry of this Order why it
should not impose filing restrictions or a monetary sanction. The filing restrictions would
prohibit Plaintiff from raising additional claims in Federal Court related to: (1) any claims
against United Concordia that were adjudicated in any prior proceeding; (2) the outcome of Poel
v. Vogel, et al, D-307-CV-2006-1638; Poel v. United Concordia, D-307-CV-2003-1487; Poel
v.New Mexico Attorney General. D-307-CV-2010-3265; Poel v. Webber, et al, Civ. No. 11-882

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JB/GBW; or In the Matter of Martin H. Poel, Disciplinary No. 09-2013-675; and (3) the conduct
of any individual or any final order (including the Money Judgment and Disciplinary Board
order) in those proceedings. If filing restrictions are imposed, Plaintiff will be required to obtain
permission from the Court before filing a complaint relating to those topics. The Court will hold
a hearing to determine whether, and to what extent, sanctions are appropriate. Plaintiff shall
appear in person and the Defendant may appear at its discretion.
IT IS THEREFORE ORDERED:
1. Defendant’s Amended Motion to Dismiss (Doc. 16) is granted; and the Complaint
(Doc. 1) is dismissed without prejudice;
2. Plaintiff’s request for oral argument is denied, the remainder of the Motion for Oral
Argument on Amended Motion to Dismiss (Doc. 27) is construed as an authorized surreply; and
Defendant’s Motion to Strike Plaintiff’s Surreply (Doc. 28) is denied; and
3. Plaintiff must show cause why the Court should not impose filing restrictions or a
monetary sanction. The Court will set a hearing to address these matters on Thursday, January
18, 2018, at 1:30 PM, at the United States District Courthouse, 4th Floor Mimbres Courtroom,
100 N. Church Street, Las Cruces, New Mexico, in which Plaintiff is required to appear in
person and the Defendant may appear at its discretion.

_______________________________
UNITED STATES DISTRICT JUDGE

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