Fulkerson v. New Mexico Department of Justice et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILLIAM FULKERSON,
Plaintiff,
v. 	No. 1:25-cv-00258-WJ-KK
NEW MEXICO DEPARTMENT OF JUSTICE,
RAUL TORREZ,
HECTOR BALDERAS,
ANDREW DEAKYNE and
RODNEY GABALDON,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
AND ORDER TO SHOW CAUSE
THIS MATTER comes before the Court on pro se Plaintiff’s Violation of Constitutional
Rights and Damages Complaint, Doc. 1, filed March 12, 2025 (“Complaint”), on Defendant
NMDOJ’s Motion to Dismiss, Doc. 12, filed April 9, 2025, and on Defendant NMDOJ’s Motion
to Deem Plaintiff a Vexatious Litigant and Motion to Stay Proceedings, Doc. 11, filed April 9,
2025.
Procedural Background
This case appears to arise from the same events that gave rise to Plaintiff’s previous case
against these Defendants. 	See Fulkerson v. New Mexico Department of Justice, No. 1:24-cv-
00382-SMD-SCY (“Fulkerson IV”).
In Fulkerson IV, Plaintiff alleged that “his federal career was prematurely ended by the
illegal actions of his former employer, the Social Security Administration.” Order of Dismissal
at 1, Doc. 22, filed February 28, 2025, in Fulkerson IV (“Order of Dismissal”). 	After seeking
administrative relief from the Equal Employment Opportunity Commission and the Merit Systems
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Protection Board, Plaintiff sought relief in this Court. See Order of Dismissal at 1 (citing previous
cases in this Court). In Fulkerson IV, Plaintiff stated “that he filed complaints with the NMDOJ
[New Mexico Department of Justice] alleging that the Social Security Administration, United
States Judges and others did not provide Plaintiff with due process.” 	Order of Dismissal at 2.
Plaintiff asserted due process claims against Defendant NMDOJ, New Mexico Attorney General
Raul Torrez, former New Mexico Attorney General Hector Balderas, Andrew Deakyne and
Rodney Gabaldon for failing to prosecute the Social Security Administration and the United States
Judges. See Order of Dismissal at 2-3, 8 (Defendants Deakyne and Gabaldon are attorneys with
Garcia Law Group, LLC, and are counsel for Defendants NMDOJ, Torrez and Balderas in
Fulkerson IV).
In Fulkerson IV, United States District Judge Sarah M. Davenport dismissed the claims
against Defendants Torrez and Balderas, who Plaintiff sued in their official capacity only, and the
NMDOJ without prejudice for lack of subject-matter jurisdiction based on the State of New
Mexico’s Eleventh Amendment sovereign immunity. 	See Order of Dismissal at 3-8. 	Judge
Davenport 	dismissed 	the 	claims 	against 	Defendants 	Deakyne 	and 	Gabaldon 	pursuant 	to
42 U.S.C. § 1983 with prejudice1 for failure to state a claim because there are no allegations that
Defendants Deakyne and Gabaldon were acting under color of state law. See Order of Dismissal
at 8-9 (declining to exercise supplemental jurisdiction of Plaintiff’s state-law claims and
dismissing those claims without prejudice).
In 	this 	case, 	Plaintiff 	names 	the 	same 	Defendants 	he 	asserted 	claims 	against 	in
Fulkerson IV. 	See Complaint at 1. 	Plaintiff alleges the Social Security Administration, United
1 Judge Davenport dismissed the claims in conjunction with granting Defendants’ motion to
dismiss. See Order of Dismissal at 13.
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States Judges and others violated Plaintiff’s civil rights during previous proceedings Plaintiff
initiated following his termination of employment with the Social Security Administration. See
Complaint at 3-14; at 21, ¶ 78 (stating “Plaintiff has exhausted his ability to get a fair hearing on
any of the previous NINE legitimate legal complaints filed in three different federal jurisdictions
[depriving Plaintiff due process]”) (emphasis in original). In this case, Plaintiff asserts NMDOJ
has violated Plaintiff’s rights under the United States Constitution and the New Mexico
Constitution and violated federal and state laws “by fail[ing] to act within the scope of its legal
responsibilities and duties to the citizens who reside within the state” by failing to prosecute the
Social Security Administration and the United States Judges. See Complaint at 27, ¶¶ 105-107.
Plaintiff also seeks the same relief in this case as he did in Fulkerson IV. Compare, Complaint at
29-30, with, Complaint at 23-24, Doc. 1, filed April 22, 2024, in Fulkerson IV.
United States Magistrate Judge Kirtan Khalsa ordered Plaintiff to show cause why the
Court should not dismiss: (i) the claims against Defendants NMDOJ, Torrez and Balderas as barred
by the State of New Mexico’s Eleventh Amendment immunity; and (ii) the claims against
Defendants Deakyne and Gabaldon pursuant to 42 U.S.C. § 1983 as barred by res judicata. See
Order to Show Cause at 3, 5 (ordering Plaintiff to also file an amended complaint).
Plaintiff filed a Response to the Order to Show Cause but did not file an amended
complaint. See Response, Doc. 10, filed April 9, 2025.
Defendant NMDOJ filed a Motion to Dismiss arguing that “Plaintiff’s claim for money
damages is precluded by Eleventh Amendment immunity, and his non-specific claim for injunctive
relief cannot sustain an Ex parte Young claim.” Motion to Dismiss at 5, Doc. 12, filed April 9,
2025. Defendant NMDOJ also argues that Plaintiff’s claims are barred by res judicata based on
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the dismissal of Fulkerson IV. 	See Motion to Dismiss at 6. 	Plaintiff did not file a response to
Defendant NMDOJ’s Motion to Dismiss.
Defendant NMDOJ also filed a motion asking the Court to deem Plaintiff a vexatious
litigant and restrict Plaintiff’s filing rights and to stay proceedings until the Order to Show Cause
is resolved. See Motion to Deem Plaintiff a Vexatious Litigant and Motion to Stay Proceedings,
Doc. 11, filed April 9, 2025. The Court denies Defendant NMDOJ’s request to stay proceedings
as moot because, as discussed below, the Court is dismissing this case. The Court denies Defendant
NMDOJ’s request to impose filing restrictions on Plaintiff as premature because the Court must
follow the Tenth Circuit’s procedure for imposing filing restrictions, described below, which
requires the Court to give Plaintiff notice and an opportunity to be heard to oppose the court's order
before it is instituted. Defendants may file a brief addressing Plaintiff’s response to the order to
show cause why the Court should not impose filing restrictions.
ORDER OF DISMISSAL
Judge Khalsa ordered Plaintiff to show cause why the Court should not dismiss: (i) the
claims against Defendants NMDOJ, Torrez and Balderas as barred by the State of New Mexico’s
Eleventh Amendment immunity; and (ii) the claims against Defendants Deakyne and Gabaldon
pursuant to 42 U.S.C. § 1983 as barred by res judicata. See Order to Show Cause at 3.
Eleventh Amendment Immunity
Plaintiff’s claims against Defendants NMDOJ, Torrez and Balderas are barred by the State
of New Mexico’s Eleventh Amendment immunity.
Generally, states and their agencies are protected from suit by sovereign immunity,
as guaranteed by the Eleventh Amendment. “The ultimate guarantee of the Eleventh
Amendment is that nonconsenting States may not be sued by private individuals in
federal court.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct.
955, 148 L.Ed.2d 866 (2001). However, there are three exceptions to the Eleventh
Amendment's guarantee of sovereign immunity to states:
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First, a state may consent to suit in federal court. Second, Congress
may 	abrogate 	a 	state's 	sovereign 	immunity 	by 	appropriate
legislation 	when 	it 	acts 	under 	Section 	5 	of 	the 	Fourteenth
Amendment. Finally, under Ex parte Young, 209 U.S. 123, 28 S.Ct.
441, 52 L.Ed. 714 (1908), a plaintiff may bring suit against
individual state officers acting in their official capacities if the
complaint alleges an ongoing violation of federal law and the
plaintiff seeks prospective relief.
Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (internal
citations omitted and altered).
Levy v. Kansas Dept. of Social and Rehabilitation Services, 789 F.3d 1164, 1169 (10th Cir. 2015).
The immunity extends to arms of the state and to state officials who are sued for damages in their
official capacity. Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir.2013).
Plaintiff states Judge Davenport’s, Judge Khalsa’s and the NMDOJ’s “sole focus on the
Eleventh Amendment sovereign immunity issue is a RED HERRING!!!” 	Response at 5, ¶ D
(emphasis in original). Plaintiff states he addressed the issue in his Complaint which states:
55. 	The Eleventh Amendment argument is a dodge, a muddy the water issue at
best. Prosecuting the criminal Legal Professionals is ONLY ONE WAY TO
UPHOLD 	AND 	DEFEND 	THE 	PLAITIFF’S 	[sic]
CONSTITUTIONAL RIGHTS. There are other ways they could have
preceded [sic] LEGALLY. Based upon the Continuing Violation Doctrine-
which is applicable to claims of an ONGOING Hostile Work environment,
legal relief is required to END THE VIOLATION. That has not happened
to date. 	The relief being asked for by the Plaintiff in this lawsuit is
PROSPECTIVE in nature. See Ex Parte Young, 209. U.S. 123, 28 S.Ct.
441, 52 L. Ed. 714 (1988).
Complaint at 16 (emphasis in original). Plaintiff also states “The Subject matter Jurisdiction issue
was resolved in the current case.” Response at 6, ¶ 17 (citing paragraph one on page one of the
Complaint which refers to Constitutional rights and states “The Subject matter jurisdiction by this
Court is based upon federal questions of Law that need to be answered by this Court”).
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Plaintiff has not shown that the State of New Mexico has consented to suit in this Court or
that Congress abrogated the State of New Mexico’s sovereign immunity by legislation.
Plaintiff’s statement that the hostile work environment is “ongoing” and that he seeks
prospective relief is not sufficient to satisfy the Ex parte Young exception to sovereign immunity.
“In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to
suit, a court need only conduct a straightforward inquiry into whether the complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as prospective.” Collins
v. Daniels, 916 F.3d 1302, 1316 n.10 (10th Cir. 2019) (stating “the inquiry into whether suit lies
under Ex parte Young does not include an analysis of the merits of the claim”) (quoting Verizon
Md., Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 646 (2002)). 	Plaintiff has not identified any
prospective injunctive relief he seeks related to alleged ongoing violations of federal law. 	See
Complaint at 30 (requesting damages and “also request[ing] this Court provide for any other
(injunctive) relief the Court may deem proper such as pre-judgement and post-judgement interest,
all Court costs expenditures, and future attorney fees if warranted”).
Res Judicata
Plaintiff’s claims against Defendants Deakyne and Gabaldon pursuant to 42 U.S.C. § 1983
are barred by res judicata based on Judge Davenport’s dismissal of Plaintiff’s Section 1983 claims
against Defendants Deakyne and Gabaldon in Fulkerson IV.
“The doctrine of res judicata, or claim preclusion, will prevent a party from
litigating a legal claim that was or could have been the subject of a previously issued
final judgment.” MACTEC, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005).
“The principle underlying the rule of claim preclusion is that a party who once has
had a chance to litigate a claim before an appropriate tribunal usually ought not
have another chance to do so.” Stone v. Dep't of Aviation, 453 F.3d 1271, 1275 (10th
Cir. 2006) (citation omitted). To apply claim preclusion, “three elements must exist:
(1) a [final] judgment on the merits in an earlier action; (2) identity of parties or
privies in the two suits; and (3) identity of the cause of action in both suits.” King
v. Union Oil Co. of Cal., 117 F.3d 443, 445 (10th Cir. 1997). In addition, even if
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these three elements are satisfied, there is an exception to the application of claim
preclusion where the party resisting it did not have a “full and fair opportunity to
litigate” the claim in the prior action. MACTEC, 427 F.3d at 831 & n.6.
Watkins v. Genesh, Inc., 135 F.4th 1224, 1239 (10th Cir. 2025).
Plaintiff states “Judge Davenport was not able to decide ANY of the legal issues presented
to her in that document. There was no final decision rendered, therefore, a RES JUDICATA
decision is not possible !!!” Response at 1, ¶ 1 (emphasis in original). Plaintiff is incorrect. Judge
Davenport dismissed Plaintiff’s Section 1983 claims against Defendants Deakyne and Gabaldon
in Fulkerson IV with prejudice and entered Final Judgment. See Order of Dismissal, Doc. 22, and
Final Judgment, Doc. 23, both filed February 28, 2025, in Fulkerson IV. The other requirements
for res judicata to apply, identity of parties and identity of cause of action, are satisfied. Finally,
Plaintiff had a full and fair opportunity to litigate those claims in Fulkerson IV because Judge
Davenport considered Plaintiff’s response to Defendants’ motion to dismiss before dismissing
those claims. Plaintiff did not appeal Judge Davenport’s dismissal of those claims. See Johnson
v. Spencer, 950 F.3d 680, 709-711 (10th Cir. 2020) (stating plaintiff cannot escape from the claim-
preclusive effect of a prior action “based on a procedural argument that was previously litigated
and adjudicated in that action and that he had an opportunity to appeal before that judgment became
final.”).
Disqualification
Plaintiff alleges that the undersigned’s ruling in a previous case demonstrated judicial bias.
Complaint at ¶¶ 14, 48, 101; see Fulkerson v. Saul, No. 1:20-cv-01145-WJ-SCY (“Fulkerson II”)
(dismissed January 7, 2021). 	The undersigned was assigned to this case on May 6, 2025. Plaintiff
has not moved for disqualification of the undersigned.
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Having considered the facts and relevant law, I decline to disqualify myself. Section 455
provides:
(a) 	Any justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.
(b) 	He shall also disqualify himself in the following circumstances:
(1) 	Where he has a personal bias or prejudice concerning a party, or
personal 	knowledge 	of 	disputed 	evidentiary 	facts 	concerning 	the
proceeding;
28 U.S.C. § 455(a and b(1)). Judges not only have a strong duty to recuse when appropriate, but
also a strong duty to sit, and the statute [Section 455] “must not be so broadly construed that it
becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated
suggestion of personal bias or prejudice.” United States v. Wells, 873 F.3d 1241, 1251 (10th Cir.
2017).
[F]ederal law instructs that a judge “shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “This
[recusal] requirement is intended ‘to promote confidence in the judiciary by
avoiding even the appearance of impropriety whenever possible.’” United States v.
Wells, 873 F.3d 1241, 1251 (10th Cir. 2017) (quoting Mathis v. Huff & Puff
Trucking, Inc., 787 F.3d 1297, 1310 (10th Cir. 2015)). “The standard is purely
objective. The inquiry is limited to outward manifestations and reasonable
inferences drawn therefrom.” United States v. Cooley, 1 F.3d 985, 993 (10th Cir.
1993); see id. (“In applying § 455(a), the judge's actual state of mind, purity of
heart, incorruptibility, or lack of partiality are not the issue.”); see also Charles
Gardner Geyh & Kris Markarian, Judicial Disqualification: An Analysis of Federal
Law, § II.B.1.A, at 20 (3d ed. 2020) (“Section 455(a) makes clear that judges should
apply an objective standard in determining whether to disqualify.”). “In other
words, a judge's subjective state of mind is irrelevant; what matters is whether ‘the
public might reasonably believe that [the judge] knew’ of ‘facts creating an
appearance of impropriety.’” Wells, 873 F.3d at 1251 (alteration in original)
(emphasis added) (quoting Liljeberg v. Health Serv. Acquisition Corp., 486 U.S.
847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988)).
“In applying the [objective] test, the initial inquiry is whether a reasonable factual
basis exists for calling the judge's impartiality into question.”
. . . .
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“In conducting this review, we must ask how these facts would appear to a well-
informed, thoughtful and objective observer,” who is “an average member of the
public,” not a “hypersensitive, cynical, and suspicious person.” Mathis, 787 F.3d at
1310 (emphasis added) (quoting Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir.
2004)). And courts must take into account that “cases within § 455(a) are extremely
fact driven ‘and must be judged on [their] unique facts and circumstances more than
by comparison to situations considered in prior jurisprudence.’” Nichols, 71 F.3d at
351 (alteration in original) (quoting United States v. Jordan, 49 F.3d 152, 157 (5th
Cir. 1995)); accord Wells, 873 F.3d at 1251.
United States v. Martinez, 92 F.4th 1213, 1255-56 (10th Cir. 2024) (emphasis in original).
There are no factual grounds that would cause a reasonable, objective person,
knowing all the relevant facts, to question the undersigned’s impartiality. Plaintiff filed a
judicial misconduct complaint against the undersigned “in December 2021” based on the
undersigned’s rulings in Plaintiff’s previous case. Complaint at ¶ 70. However, “adverse
rulings cannot in themselves form the appropriate grounds for disqualification.” 	United
States v. Wells, 873 F.3d 1241, 1252 (10th Cir. 2017).
Conclusion
The Court dismisses Plaintiff’s claims against Defendants NMDOJ, Torrez and Balderas
without prejudice for lack of subject-matter jurisdiction based on the State of New Mexico’s
Eleventh Amendment sovereign immunity. 	The Court dismisses Plaintiff’s claims against
Defendants Deakyne and Gabaldon pursuant to 42 U.S.C. § 1983 as barred by res judicata based
on Judge Davenport’s dismissal of those claims in Fulkerson IV.
The 	Court, 	having 	dismissed 	Plaintiff’s 	federal 	law 	claims, 	declines 	to 	exercise
supplemental jurisdiction over Plaintiff’s state law claims and dismisses this case. 	See
28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over
a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction”);
Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1238 (10th Cir.
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2020) (“The Supreme Court has encouraged the practice of dismissing state claims or remanding
them to state court when the federal claims to which they are supplemental have dropped out before
trial”).
ORDER TO SHOW CAUSE
Plaintiff has filed the following cases in this Court:
(i) 	Fulkerson 	v. 	Social 	Security 	Administration, 	No. 	1:16-cv-00889-BRB-KBM
(“Fulkerson I”). Plaintiff, who was represented by counsel, asserted employment
discrimination and retaliation claims against his former employer, Defendant Social
Security 	Administration. 	The 	Court 	granted 	Defendant 	Social 	Security
Administration’s motion for summary judgment and dismissed Fulkerson I on
April 6, 2018. Plaintiff did not appeal the dismissal of Fulkerson I.
(ii) 	Fulkerson v. Saul, No. 1:20-cv-01145-WJ-SCY (“Fulkerson II”) (Defendant
Andrew Saul was the Commissioner of the Social Security Administration). After
noting that Fulkerson II appears to arise from the same facts in Fulkerson I and
explaining that it appears the claims in Fulkerson II are barred by the doctrine of
res judicata and/or the statute of limitations, the Court ordered Plaintiff, who was
proceeding pro se, to show cause why the Court should not dismiss Fulkerson II
and to file an amended complaint. The Court dismissed Fulkerson II with prejudice
on January 7, 2021, after Plaintiff failed to show that his claims are not barred by
res judicata or the statute of limitations. 	The Tenth Circuit Court of Appeals
affirmed the dismissal, with one minor exception. See Order and Judgment, Doc.
16-1, filed November 29, 2021, in Fulkerson II (reversing and remanding on
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Fulkerson’s whistleblowing claim so that it can be dismissed without prejudice for
lack of jurisdiction).
(iii) 	Fulkerson v. New Mexico Office of the Attorney General, No. 1:23-cv-00860-MV-
SCY (“Fulkerson III”). Plaintiff filed Fulkerson III against Defendant New Mexico
Office of the Attorney General alleging that multiple federal actors (i.e., judges)
violated Plaintiff’s federal and state-law rights when they issued final decisions in
various legal cases that he filed without first addressing Plaintiff’s property interest
rights, that those rights violations were crimes and the NMOAG failed to prosecute
the federal actors. The Court granted Defendant NMOAG’s motion to dismiss and,
on March 19, 2024, dismissed Fulkerson III without prejudice based on Plaintiff’s
lack of standing to bring Fulkerson III against the NMOAG for failure to prosecute.
Plaintiff did not appeal the dismissal of Fulkerson III.
(iv) 	Fulkerson v. New Mexico Department of Justice, No. 1:24-cv-00382-SMD-SCY
(“Fulkerson IV”). Plaintiff did not appeal the dismissal of Fulkerson IV which is
described above in the Procedural Background section of this Order.
(v) 	Fulkerson v. New Mexico Department of Justice, No. 1:25-cv-00258-WJ-KK (this
case).
Plaintiff’s repeated attempts to litigate matters that have already been decided by the Court
cause the Court and the Parties to needlessly expend valuable resources. The Court finds that filing
restrictions are appropriate so that the Court and Parties do not expend valuable resources
addressing future such filings and orders Plaintiff to show cause why the Court should not impose
filing restrictions.
Court’s Power to Impose Filing Restrictions
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The United States Court of Appeals for the Tenth Circuit has discussed the Court’s power
to impose filing restrictions and the procedure for imposing 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.” Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989) (per
curiam) (citation omitted). “There is strong precedent establishing the inherent
power of federal courts to regulate the activities of abusive litigants by imposing
carefully tailored restrictions under the appropriate circumstances.” Cotner v.
Hopkins, 795 F.2d 900, 902 (10th Cir. 1986). “Even onerous conditions may be
imposed upon a litigant as long as they are designed to assist the ... court in curbing
the 	particular 	abusive 	behavior 	involved,” 	except 	that 	they 	“cannot 	be 	so
burdensome ... as to deny a litigant meaningful access to the courts.” Id. (brackets
and internal quotation marks omitted). “Litigiousness alone will not support an
injunction restricting filing activities. However, injunctions are proper where the
litigant's abusive and lengthy history is properly set forth.” Tripati, 878 F.2d at 353
(citations omitted). “[T]here must be some guidelines as to what [a party] must do
to obtain the court's permission to file an action.” Id. at 354. “In addition, [the party]
is entitled to notice and an opportunity to oppose the court's order before it is
instituted.” Id. A hearing is not required; a written opportunity to respond is
sufficient. See id.
Landrith v. Schmidt, 732 F.3d 1171, 1174 (10th Cir. 2013).
Proposed Filing Restrictions
The Court proposes to impose the following filing restrictions on Plaintiff:
Plaintiff will be enjoined from making further filings in this case except objections to this
order, a notice of appeal and a motion for leave to proceed on appeal in forma pauperis; and the
Clerk will be directed to not file any additional submissions by Plaintiff in this case other than
objections to this order, a notice of appeal, or a motion for leave to proceed on appeal in forma
pauperis, unless a licensed attorney who is admitted to practice before this Court and has appeared
in this action signs the proposed filing.
Plaintiff also will be enjoined from initiating future litigation in this Court and the Clerk
will be directed to not file any initial pleading that Plaintiff submits, unless either a licensed
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attorney who is admitted to practice before this Court signs the pleading or Plaintiff first obtains
permission to proceed pro se. See DePineda v. Hemphill, 34 F.3d 946, 948-49 (10th Cir. 1994).
To obtain permission to proceed pro se in this Court, Plaintiff must take the following steps:
1. File with the Clerk of Court a petition requesting leave to file a pro se initial pleading, a
notarized affidavit, the proposed initial pleading, and a copy of these filing restrictions;
2. The affidavit must be notarized, be in proper legal form and recite the claims that Plaintiff
seeks to present, including a short discussion of the legal bases for the claims, and the basis of the
Court’s jurisdiction of the subject matter and parties. The affidavit must certify that, to the best of
Plaintiff’s knowledge, Plaintiff's claims 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 initiated for any improper purpose such as delay or needless
increase in the cost of litigation; and that Plaintiff will comply with all Federal Rules of Civil
Procedure and the District of New Mexico’s Local Rules of Civil Procedure. If Plaintiff’s claims
have previously been raised or Plaintiff has previously sued the defendants, the affidavit must
certify that the proposed new suit does not present the same claims that this or any other court has
decided and explain why the new suit would not be an abuse of the system;
3. The Clerk of the Court shall open a new civil case, file the petition, the affidavit, the
proposed pleading and the copy of these restrictions in the new civil case, and randomly assign a
Magistrate Judge to determine whether to grant Plaintiff’s petition to proceed pro se in the new
civil case. See Mem. Op. and Order, Doc. 21 at 6-9, filed in In re Billy L. Edwards, No. 15cv631
MCA/SMV (D.N.M. November 13, 2015) (adopting procedure, similar to that of the Tenth Circuit,
of opening a new case and filing the restricted filer’s petition to proceed pro se). If the Magistrate
Judge approves Plaintiff’s petition to proceed pro se, the Magistrate Judge shall enter an order
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indicating that the matter shall proceed in accordance with the Federal Rules of Civil Procedure
and the District of New Mexico’s Local Rules of Civil Procedure. If the Magistrate Judge does
not approve Plaintiff’s petition to proceed pro se, the Magistrate Judge shall instruct the Clerk to
assign a District Judge to the new case.
IT IS ORDERED that:
(i) 	Defendant NMDOJ’s Motion to Dismiss, Doc. 12, filed April 9, 2025, is
GRANTED as follows. 	Plaintiff’s claims against Defendants New Mexico
Department of Justice, Raul Torres and Hector Balderas are DISMISSED without
prejudice. 	Plaintiff’s claims against Defendants Andrew Deakyne and Rodney
Gabaldon are DISMISSED with prejudice. This case is DISMISSED.
(ii) 	Defendant NMDOJ’s Motion to Deem Plaintiff a Vexatious Litigant and Motion to
Stay Proceedings, Doc. 11, filed April 9, 2025, is DENIED.
(iii) 	Within fourteen (14) days from entry of this Order, Plaintiff shall show cause why
this Court should not enter the proposed filing restrictions described above.
Plaintiff’s written objections to the proposed filing restrictions shall be limited to
10 pages. 	If Plaintiff does not timely file objections to the proposed filing
restrictions, the proposed filing restrictions shall take effect fourteen (14) days from
the date of this order and will apply to any matter filed after that time. If Plaintiff
timely files objections, restrictions will take effect only upon entry of a subsequent
order. 	Defendants may, within 14 days of service of Plaintiff’s response to this
Order to Show Cause, file a reply addressing Plaintiff’s response. 	Plaintiff may,
within 14 days of service of Defendants’ brief, file a surreply addressing
Defendants’ reply.
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/s/
_________________________________________
WILLIAM P. JOHNSON
SENIOR UNITED STATES DISTRICT JUDGE
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