Brown et al v. Second Judicial District Court of New Mexico et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BERNADINE BROWN,
Plaintiff,
v. No. 1:25-cv-00649-KG-SCY
CENTRAL BAPTIST ASSOCIATION OF NEW MEXICO, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff, who is proceeding pro se, asserted civil rights claims pursuant to 42 U.S.C. § 1983
for deprivation of “procedural due process, equal protection, and religious liberty through
unauthorized litigation, misuse of judicial process, and discriminatory enforcement of a deed
restriction.” Amended Complaint for Declaratory and Injunctive Relief Under 42 U.S.C. § 1983 and
Related Statutes at 2, Doc. 6, filed July 11, 2025 (“Amended Complaint”). Plaintiff asserted claims
on behalf of herself and on behalf of TrueVine Baptist Church (Emerge Ministries ABQ). See
Amended Complaint at 1, 7. Plaintiff asserted claims against: (i) the Second Judicial District Court
and Second Judicial District Court Judge Erin O’Connell; (ii) Central Baptist Association of New
Mexico and its attorney; (iii) 21st Mortgage Corporation and its attorney; and (iv) John/Jane Does 1-
10 “acting in concert with named Defendants.” Amended Complaint at 1, 7-8. Plaintiff sought, among
other things, injunctive relief “prohibiting the named judge and attorneys from further involvement
in the property litigation or any future suits involving TrueVine Baptist Church.” Amended
Complaint at 32.
United States Magistrate Judge Steven C. Yarbrough notified Plaintiff it appears that the Court
does not have jurisdiction over Plaintiff’s claims against the Second Judicial District Court, which is
an arm of the State of New Mexico, and its officers because, generally, states and their agencies are
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protected from suit by sovereign immunity, as guaranteed by the Eleventh Amendment. See Order to
Show Cause at 4-5, Doc. 8, filed July 17, 2025. Judge Yarbrough also notified Plaintiff that the Anti–
Injunction Act ordinarily precludes injunctions against state-court proceedings and that Plaintiff, who
is not an attorney authorized to practice before this Court, cannot bring claims on behalf of TrueVine
Baptist Church. See Order to Show Cause at 6. Finally, Judge Yarbrough notified Plaintiff that failure
to comply with Court orders and the Federal and Local Rules of Civil Procedure may result in
sanctions, including dismissal of this case. See Order to Show Cause at 7 (reminding Plaintiff of her
obligation to serve Defendants).
Judge Yarbrough ordered Plaintiff to: (i) either show cause why the Court should not dismiss
Plaintiff’s claims against the Second Judicial District Court and its officers for lack of jurisdiction or
file second amended complaint; and (ii) either show cause why the claims brought by TrueVine
Baptist Church should not be dismissed as Plaintiff, a non-attorney, cannot bring claims on its behalf
or file an amended complaint. See Order to Show Cause at 8 (notifying Plaintiff that failure to timely
show cause or file a second amended complaint may result in dismissal of Plaintiff’s claims). Plaintiff
did not show cause or file a second amended complaint by the August 7, 2025, deadline. The Court
dismissed Plaintiff’s claims against the Second Judicial District Court and Judge O’Connell and
TrueVine Baptist Church’s claims without prejudice. See Order Dismissing Claims, Doc. 23, filed
August 28, 2025.
The only Defendants remaining in this case are: (i) Central Baptist Association of New Mexico
(“Association”); (ii) Charles Hughson, counsel for the Association; (iii) 21st Mortgage Corporation;
(iv) Steven Hoffman, counsel for 21st Mortgage; and (v) John/Jane Does 1-10. See Amended
Complaint at 7-8.
The Court notified Plaintiff:
Plaintiff asserts claims pursuant to 42 U.S.C. §§ 1983 and 1983. See Amended
Complaint at 1. "The two elements of a Section 1983 claim are (1) deprivation of a
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federally protected right by (2) an actor acting under color of state law." Schaffer v.
Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016). “To state a claim under §
1985(3), [plaintiff] must show (1) a conspiracy; (2) to interfere with his rights because
of racial or class-based animus; (3) an act in furtherance of the conspiracy; and (4) a
resulting injury.” Avery v. Wade, 2022 WL 17544077 *2 (citing Tilton v. Richardson,
6 F.3d 683, 686 (10th Cir. 1993) (quoting Griffin v. Breckenridge, 403 U.S. 88, 101–
03 (1971))). The Amended Complaint does not allege facts showing that the remaining
Defendants were acting under color of state law, does not show that the remaining
Defendants deprived Plaintiff of federally protected rights and does not explain how
the remaining Defendants conspired to interfere with Plaintiff’s rights because of racial
or class-based animus.
Plaintiff also asserts claims pursuant to the National Historic Preservation Act,
54 U.S.C. §§ 300101 et seq. and the Internal Revenue Code, 26 U.S.C. § 501(c)(3).
Those statutes may be relevant to TrueVine Baptist Church’s now-dismissed claims,
but do not appear to apply to Plaintiff’s claims.
Order to Show Cause at 4, Doc. 32, filed September 4, 2025. The Court ordered Plaintiff to show
cause why the Court should not dismiss her claims and to file a second amended complaint. See
Order to Show Cause at 6 (notifying Plaintiff that failure to timely show cause and file a second
amended complaint may result in dismissal of this case). Plaintiff timely filed a Response to the
Order to Show Cause but did not file a second amended complaint by the October 20, 2025, deadline.
Plaintiff filed 11 motions between August 1 and September 2, 2025. See Doc’s 14-16, 19-22,
25-27, 31 (including for summary judgment, for declaratory judgment, and to dismiss or stay state
court proceedings). One of the motions asked the Court to recognize completion of service as to two
Defendants and stating Plaintiff has completed service on the other Defendants. See Doc. 19, filed
August 4, 2025. The Court denied the motion to recognize completion of service because Plaintiff
has not shown that she properly served Defendants pursuant to Rule 4 of the Federal Rules of Civil
Procedure. See Order Denying Motion to Recognize Completion of Service, Doc. 33, filed September
4, 2025; Fed. R. Civ. P. 4(l)(1) (“Unless service is waived, proof of service must be made to the court.
Except for service by a United States marshal or deputy marshal, proof must be by the server’s
affidavit”); Order to Show Cause at 7 (notifying Plaintiff: (i) of her responsibility to become familiar
with and to comply with the Federal and Local Rules of Civil Procedure; (ii) failure to comply with
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Court Orders and the Federal and Local Rules of Civil Procedure may result in sanction including
dismissal of this case; and (iii) of her obligation to serve Defendants). The Court denied the remaining
motions without prejudice because the Court has dismissed the claims against the Second Judicial
District Court and Second Judicial District Court Judge O’Connell and because Plaintiff has not
shown proof of service on the remaining Defendants. See Order Denying Motions, Doc. 34, filed
September 8, 2025.
The Court dismisses this case without prejudice based on Plaintiff’s failure to comply with
Judge Yarbrough’s Order to either show cause or file a second amended complaint, Plaintiff’s failure
to show she properly served Defendants pursuant Federal Rule of Civil Procedure 4, and Plaintiff’s
failure to comply with the undersigned’s Order to file a second amended complaint. Rule 41(b) of
the Federal Rules of Civil Procedure states: “If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the action or any claim against it.”
Fed. R. Civ. P. 41(b); Gustafson v. Luke, 696 Fed.Appx. 352, 354 (10th Cir. 2017) (“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 to dismiss actions sua sponte for a plaintiff's failure to prosecute or comply
with the rules of civil procedure or court's orders.”) (quoting Olsen v. Mapes, 333 F.3d 1199, 1204
n.3 (10th Cir. 2003)).
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 court.” A district court may dismiss an action under Rule
41(b) after finding that certain enumerated criteria support a dismissal. These criteria
include “(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.” Mobley v.
McCormick, 40 F.3d 337, 340 (10th Cir.1994) (quoting Ehrenhaus v. Reynolds, 965
F.2d 916, 921 (10th Cir.1992)).
Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003). “The sanction of dismissal with prejudice for
failure to prosecute is a ‘severe sanction,’ a measure of last resort.” Ecclesiastes 9:10-11-12, Inc. v.
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LMC Holding Co., 497 F.3d 1135, 1143-44 (10th Cir. 2007) (stating “dismissal is warranted when
‘the aggravating factors outweigh the judicial system’s strong predisposition to resolve cases on their
merits’”) (quoting Ehrenhaus, 965 F.2d at 921).
The Court finds that there is no prejudice to the remaining Defendants resulting from dismissal
of this case because the remaining Defendants have not appeared. Plaintiff’s failure to properly serve
the remaining Defendants, to file proof of service and to file a second amended complaint interferes
with the judicial process. This case cannot proceed until the remaining Defendants are served. The
Court finds Plaintiff is culpable and that other sanctions short of dismissal would likely not be
effective because despite the Court notifying Plaintiff of her obligation to serve the remaining
Defendants and that failure to timely file a second amended complaint may result in dismissal of this
case, Plaintiff did not file proof of service or file a second amended complaint. The Court finds that
dismissal without prejudice is an appropriate sanction because: (i) dismissal with prejudice is a
“severe sanction, a measure of last resort;” (ii) the judicial system has a “strong predisposition to
resolve cases on their merits;” and (iii) this case is in an early stage.
IT IS ORDERED that this case is DISMISSED without prejudice.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its authenticity,
please refer to the Digital File Stamp on the NEF
(Notice of Electronic Filing) accompanying this
document. Electronically filed documents can
be found on the Court’s PACER public access
system.
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