Gardner v. New Mexico Board of Dental Health et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILLIAM GARDNER,
Plaintiff,
v. 	No. 1:25-cv-00421-SMD-SCY
NEW MEXICO BOARD OF DENTAL HEALTH as a public body,
In their individual and official capacities:
JENNIFER THOMPSON,
MELISSA BARBARA,
PAULA JENKINS,
VALOREE ALTHOFF,
MAYA MASCARENAZ,
JEFFERY WEATON,
HOLLY BEAUMONT,
KEVIN MCMAHON,
NEW MEXICO DEPARTMENT OF JUSTICE as a public body,
DANIEL RUBIN in his individual and official capacities,
Defendants.
ORDER GRANTING IN PART MOTION FOR CLARIFICATION
This case arises from proceedings before the New Mexico Board of Dental Health
regarding pro se Plaintiff’s application to have his dental license reinstated. 	See Verified
Complaint for Violations of the New Mexico Civil Rights Act, Prima Facie Tortious Claim of Civil
Aiding, Abetting, Civil Conspiracy, a 1983 Claim for Damages and Injunctive Relief, Doc. 1-1,
filed May 2, 2025 (“Complaint”). Plaintiff filed his Complaint in state court on March 31, 2025.
See Complaint at 1. (“Complaint”). Defendant New Mexico Department of Justice (“NMDOJ”)
removed the case to this Court on May 2, 2025. See Notice of Removal, Doc. 1.
The Court granted Defendant NMDOJ’s motion to dismiss. See Doc. 76, filed March 29,
2026. 	Plaintiff appealed the Court’s dismissal of his claims against NMDOJ. 	See Notice of
Appeal, Doc. 77, filed March 29, 2026. 	The United States Court of Appeals for Tenth Circuit
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dismissed Plaintiff’s appeal on April 22, 2026, for lack of prosecution. See Order of United States
Court of Appeals for the Tenth Circuit, Doc. 87.
Plaintiff moved to change venue of this case from the Albuquerque Division of this Court
to the Las Cruces Division stating there is “bias or prejudice” in the Albuquerque Division
preventing a fair trial and that potential jurors may have connections to the Defendants in
Albuquerque and Santa Fe. See Motion for Change of Venue at 2-3, Doc. 63, filed December 3,
2025 (alleging the Magistrate Judge is denying Plaintiff justice and blocking Plaintiff from
prosecuting this case by denying Plaintiff’s motions for pretrial conferences). The Court denied
Plaintiff’s Motion for Change of Venue because Plaintiff did not show that there is bias or prejudice
in the Albuquerque Division of this Court. 	See Order Denying Change of Venue at 2, Doc. 81,
filed April 1, 2026 (stating the Magistrate Judge found good cause to delay entry of an order for a
pretrial conference pending resolution of the six then-pending dispositive motions; also stating that
Plaintiff will have an opportunity before trial to examine potential jurors regarding their
impartiality and that the Court will determine the venue for the trial at a later date).
Two days before the Tenth Circuit dismissed Plaintiff’s first appeal, Plaintiff filed a second
Notice of Appeal. 	See Doc. 83, filed April 20, 2026 (stating “Plaintiff hereby appeals from the
following order: (a) The last Order entered on April 1st, 2026, April 7, 2026 (DOC 81, 82)
dismissing Plaintiff’s complaint without prejudice for failure to state [a] Claim;” citing the Court’s
Orders denying Plaintiff’s motion for change of venue and granting Plaintiff’s motion to withdraw
his reply) (emphasis added). 	The only Order entered on April 1, 2026, is the Order denying
Plaintiff’s Motion for Change of Venue. Plaintiff’s second appeal remains pending.
The same day Plaintiff filed his Second Notice of Appeal, the Dental Board Defendants
filed a Motion to Dismiss which remains pending. See Defendants New Mexico Board of Dental
Health and Individually-Named Defendants Revised Special Appearance Motion to Dismiss for
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Insufficient Service, Doc. 84, filed April 20, 2026. Plaintiff has filed a Motion for Injunctive Relief
which also is pending. 	See Plaintiff’s Verified Emergency Petition for Writ of Mandamus and
Application 	for 	Temporary 	Restraining 	Order 	and 	Preliminary 	Injunction 	Pursuant 	to
42 U.S.C. § 1983, Doc. 66, filed February 6, 2026 (“Motion for Injunctive Relief”).
Plaintiff now asks the Court to: (i) clarify whether “this case is currently open and active
on this Court’s docket” based on the April 22, 2026, Order of the United States Court of Appeals
for Tenth Circuit dismissing Plaintiff’s first appeal; and (ii) schedule a status conference. Motion
for Clarification of Case Status and Request for Status Conference Following Tenth Circuit
Remand at 3, Doc. 88, filed May 1, 2026.
The Court currently lacks jurisdiction to proceed on Plaintiff’s Motion for Injunctive Relief
and the Dental Board Defendants’ Motion to Dismiss due to Plaintiff’s second appeal which
remains pending.
“[T]he filing of a notice of appeal is an event of jurisdictional significance—it
confers jurisdiction on the court of appeals and divests the district court of its
control over those aspects of the case involved in the appeal.” United States v.
Madrid, 633 F.3d 1222, 1226 (10th Cir. 2011) (internal quotation marks omitted).
But “an effective notice of appeal does not prohibit all later action in the case by
the district court.” Id. As noted, the district court loses jurisdiction only “over those
aspects of the case involved in the appeal,” and so it “may address matters that are
not comprehended within the appeal.” Id. at 1226-27 (brackets and internal
quotation marks omitted); see also Garcia v. Burlington N. R.R. Co., 818 F.2d 713,
721 (10th Cir. 1987) (“In collateral matters not involved in the appeal ... the district
court retains jurisdiction.”).
CGC Holding Co., LLC v. Hutchens, 780 Fed.Appx. 604, 606 (10th Cir. 2019). Whether this case
can proceed in the Albuquerque Division of this Court is an aspect of Plaintiff’s second appeal.
Because the Court currently lacks jurisdiction over this case, the Court denies Plaintiff’s request
for a status conference.
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IT IS ORDERED that:
(i) 	Plaintiff’s Motion for Clarification of 	Case Status and Request for Status
Conference Following Tenth Circuit Remand, Doc. 88, filed May 1, 2026, is
GRANTED in part 	as follows. 	The Court grants Plaintiff’s request for
clarification and denies Plaintiff’s request for a status conference without prejudice.
(ii) 	Plaintiff’s response to Defendants New Mexico Board of Dental Health and
Individually-Named Defendants’ Revised Special Appearance Motion to Dismiss
for Insufficient Service, Doc. 84, filed April 20, 2026, is due 14 days after the
United States Court of Appeals for the Tenth Circuit enters its mandate regarding
Plaintiff’s Second Notice of Appeal and transfers jurisdiction back to this Court.
_________________________________
UNITED STATES DISTRICT JUDGE
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