Miller v. Thirteenth District Court et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ERIC MILLER,
Plaintiff,
v. 	No. 1:26-cv-00218-SCY
THIRTEENTH DISTRICT COURT OF SANDOVAL COUNTY,
JAMES A. NOEL,
MARCY BAYSINGER and
KAMIL WOODS,
Defendants.
ORDER TO CURE DEFICIENCY,
ORDER TO SHOW CAUSE AND
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL
THIS MATTER comes before the Court on pro se Plaintiff’s Original Complaint for
Preliminary and Permanent Injunctive and Declaratory Relief, Doc. 1, filed January 30, 2026
(“Complaint”), and Plaintiff’s Motion for Appointment of Counsel, Doc. 2, filed January 30,
2026.
Order to Cure Deficiency
Federal law requires that the Clerk of Court “require the parties instituting any civil
action, suit or proceeding in such court ... to pay a filing fee of $350 ... [and] such additional fees
only as are prescribed by the Judicial Conference of the United States.” 28 U.S.C. §§ 1914(a, b).1
The Court “may authorize the commencement, prosecution or defense of any suit, action or
proceeding civil or criminal, or appeal therein, without prepayment of fees or security therefor,
by a person who submits an affidavit that includes a statement of all assets such [person]
1 The fee for instituting any civil action, suit or proceeding is comprised of a $350.00 filing
fee, see 28 U.S.C. §1914, and a $55.00 administrative fee.
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possesses that the person is unable to pay such fees or give security therefor.”
28 U.S.C. § 1915(a)(1).
Plaintiff has not paid the $405.00 fee or filed an Application to Proceed in District Court
Without Prepaying Fees or Costs (Long Form). The Court orders Plaintiff to either pay the fee or
file a Long Form Application.
Order to Show Cause
This case arises from a probate proceeding in state court. See Complaint at 2, 5. Plaintiff
is the decedent’s son. See Complaint at 2, ¶ 1. Defendants are: (i) the state district court;
(ii) James A. Noel, the judge presiding over the probate proceeding; (iii) Kamil Woods,
decedent’s granddaughter who filed a petition for probate of decedent’s will; and (iv) Marcy
Baysinger, an attorney representing Defendant Woods in the probate proceeding. See Complaint
at 2, 5-6. Plaintiff asserts due process and equal protection claims, claims pursuant to
42 U.S.C. § 1981(a) and 18 U.S.C. § 241, and claims pursuant to state law. Plaintiff seeks
monetary damages, injunctive relief, and declaratory judgments. See Complaint at 34-35.
The Court has identified some deficiencies in the Complaint, described below, and orders
Plaintiff to show cause why the Court should not dismiss this case. See Lowrey v. Sandoval
County Children Youth and Families Department, 2023WL4560223 *2 (10th Cir. July 17, 2023)
(“[g]iven a referral for non-dispositive pretrial matters, a magistrate judge may point out
deficiencies in the complaint [and] order a litigant to show cause” (citing 28 U.S.C.
§ 636(b)(1)(A) and Fed. R. Civ. P. 72(a))).
First, it appears the Court lacks jurisdiction over Plaintiff’s claims against the state court
and state court judge due to Eleventh Amendment sovereign immunity. “Generally, states and
their agencies are protected from suit by sovereign immunity, as guaranteed by the Eleventh
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Amendment.” Levy v. Kansas Dept. of Social and Rehabilitation Services, 789 F.3d 1164, 1169
(10th Cir. 2015). “However, there are three exceptions to the Eleventh Amendment’s guarantee
of sovereign immunity to states”:
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.
Id. (citing Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (internal
citations omitted and altered)); see also Turner v. National Council of State Boards of Nursing,
Inc., 561 F. App’x 661, 665 (10th Cir. 2014) (“[Eleventh Amendment] immunity extends to arms
of the state”) (citing Peterson v. Martinez, 707 F.3d 1197, 1205 (10th Cir. 2013)); Catanach v.
Thomson, 718 F. App’x 595, 597, 599-600 (10th Cir. 2017) (“Section 1983 expressly disallows
injunctive relief against a judicial officer ‘for an act or omission taken in such officer’s judicial
capacity . . . unless a declaratory decree was violated or declaratory relief was unavailable.’”)
(emphasis added) (quoting 42 U.S.C. § 1983). In this case, there are no factual allegations
showing that any of the three exceptions to the Eleventh Amendment’s guarantee of sovereign
immunity to states apply to Plaintiff’s claims against Defendants Thirteenth Judicial District
Court or Judge James A. Noel.
Second, it appears that Plaintiff’s claims against the state court judge in his personal
capacity are barred by judicial immunity. “[S]tate court judges are absolutely immune from
monetary damages claims for actions taken in their judicial capacity, unless the actions are taken
in the complete absence of all jurisdiction.” Sawyer v. Gorman, 317 F. App’x 725, 727 (10th Cir.
2008) (quoting Mireles v. Waco, 502 U.S. 9, 11-12 (1991)). Plaintiff alleges that Judge Noel by
“granting the order to appoint Defendant Kamil to be personal representative violated Plaintiff’s
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‘Due Process’ rights that is required by the U.S. and New Mexico Constitution and lost
jurisdiction over these proceedings.” Complaint at 29, ¶ 79.
[A]n act taken in excess of a court’s jurisdiction is not to be confused with an act
taken in the “complete absence of all jurisdiction.” As Bradley v. Fisher, 13 Wall.
335, 80 U.S. 335, 351–52, 20 L.Ed. 646 (1871), explained,
Where there is clearly no jurisdiction over the subject-matter any
authority exercised is a usurped authority, and for the exercise of
such authority, when the want of jurisdiction is known to the judge,
no excuse is permissible. But where jurisdiction over the subject-
matter is invested by law in the judge, or in the court which he
holds, the manner and extent in which the jurisdiction shall be
exercised are generally as much questions for his determination as
any other questions involved in the case, although upon the
correctness of his determination in these particulars the validity of
his judgments may depend.
To illustrate this distinction, the Supreme Court has stated:
[I]f a probate judge, with jurisdiction over only wills and estates,
should try a criminal case, he would be acting in the clear absence
of jurisdiction and would not be immune from liability for his
action; on the other hand, if a judge of a criminal court should
convict a defendant of a nonexistent crime, he would merely be
acting in excess of his jurisdiction and would be immune.
Stein v. Disciplinary Bd. Of Supreme Court of New Mexico, 520 F.3d 1183, 1195 (10th Cir.
2008); Stump v. Sparkman, 435 U.S. 349, 356–57 (1978) (articulating broad immunity rule that a
“judge will not be deprived of immunity because the action he took was in error, was done
maliciously, or was in excess of his authority”). There are no allegations showing that Defendant
Judge Noel did not have jurisdiction to preside over the probate proceeding.
Third, the Complaint fails to state claims for due process and equal protection pursuant to
42 U.S.C. § 1983 against Defendant Woods and her attorney Defendant Baysinger. “The two
elements of a Section 1983 claim are (1) deprivation of a 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.
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2016); DiCesare v. McAnally, 657 F. App’x 800, 802 (10th Cir. 2016) (“a lawyer representing a
client is not, by virtue of being an officer of the court, a state actor ‘under color of state law’ within
the meaning of § 1983”) (quoting Polk Cnty. v. Dodson, 454 U.S. 312, 318 (1981)). There are no
allegations showing that Defendants Woods and Baysinger were acting under color of state law.
Fourth, the Complaint fails to state a claim pursuant to 42 U.S.C. 1981.
Section 1981 guarantees that “[a]ll persons ... shall have the same right ... to make
and enforce contracts ... as is enjoyed by white citizens.” § 1981(a). As relevant
here, “the term ‘make and enforce contracts’ includes ... termination of
contracts[ ] and the enjoyment of all benefits, privileges, terms, and conditions of
the contractual relationship.” § 1981(b). To prevail on a § 1981 discrimination
claim, a plaintiff must show: (1) membership in a protected class; (2) the
defendant intended to discriminate on the basis of race; and (3) the alleged
discrimination interfered with a protected activity as defined in the statute (that is,
making or enforcing a contract).
Cruz v. Farmers Ins. Exchange, 42 F.4th 1091, 1205, 1210 (10th Cir. 2022). There are no
allegations that Plaintiff is a member of a protected class or that any of the defendants intended
to discriminate on the basis of race.
Fifth, the Complaint fails to state a claim upon which relief can be granted pursuant to
18 U.S.C. § 241, Conspiracy against rights, because 18 U.S.C. § 241 is a criminal statute.
“[C]riminal statutes do not provide for private civil causes of action.” Kelly v. Rockefeller, 69 F.
App’x 414, 415-416 (10th Cir. 2003); see Diamond v. Charles, 476 U.S. 54, 64 (1986) (“a
private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of
another”).
The Court notifies Plaintiff that if the Court dismisses Plaintiff’s federal law claims, the
Court may decline to exercise supplemental jurisdiction over Plaintiff’s state law claims and
dismiss 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
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which it has original jurisdiction”); Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson,
P.C., 956 F.3d 1228, 1238 (10th Cir. 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”).
The Court orders Plaintiff to show cause why the Court should not dismiss this case for
the reasons stated above. If Plaintiff agrees with the Court’s analysis regarding these deficiencies
in his Complaint, rather than show cause, he may amend his Complaint. See Nasious v. Two
Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir.
2007) (“[T]o state a claim in federal court, a complaint must explain what each defendant did to
him or her; when [each] defendant did it; how [each] defendant’s action harmed him or her; and,
what specific legal right the plaintiff believes [each] defendant violated.”) (emphasis added). The
amended complaint must comply with the Federal and Local Rules of Civil Procedure.
Order Denying Motion for Appointment of Counsel
Plaintiff requests that the Court appoint counsel stating:
I understand a pro se litigant has no right to be represented by court-appointed
counsel, and the court has no obligation to appoint counsel. However, the court
may appoint an attorney who agrees to appear in this exceptional case.
Motion to Appoint Counsel at 1.
Plaintiff correctly states that he has no right to court-appointed counsel. See Witmer v.
Grady County Jail, 483 F. App’x 458, 462 (10th Cir. 2012). (“[C]ivil litigants have no right to
counsel”). The decision to appoint counsel is left to the “extremely broad” discretion of the
district court. Castner v. Colo. Springs Cablevision, 979 F.2d 1417, 1420 (10th Cir. 1992). While
courts have authority to “request an attorney to represent a litigant who is proceeding in forma
pauperis,” Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006) (emphasis added), the
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Court cannot “require an unwilling attorney to represent an indigent litigant in a civil case,”
Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 298 (1989) (emphasis added).
Congress has not provided any mechanism, process, or funds to pay appointed counsel. See 28
U.S.C. § 1915(e)(1). Thus, the Court not only considers the benefits of having a represented
plaintiff, but also must consider the hardship imposed on an attorney who is appointed to serve
without remuneration or compensation, as well as without assurance that he or she would have
funds available to assist in the investigation of claims, conduct formal discovery, retain experts,
pay witness fees, or otherwise defray the costs of litigation. Plaintiff has not cited, and the Court
has not found, any legal authority which would allow the Court to appoint counsel in this case.
The United States Court of Appeals for the Tenth Circuit has addressed the issue raised
by Plaintiff’s statement that the Court may appoint an attorney who agrees to appear in certain
cases:
We start with the scope of the district court’s authority: The court cannot appoint
counsel; instead, the court can only ask an attorney to take the case. Rachel v.
Troutt, 820 F.3d 390, 396–97 (10th Cir. 2016). In deciding whether the district
court acted within its discretion, “we consider the merits of the claims, the nature
of the claims, [the claimant’s] ability to present the claims, and the complexity of
the issues.” Id. at 397.
The district court considered these factors and declined to request legal
representation for Mr. Moaz. This decision was reasonable:
Each year, the district court receives hundreds of requests for legal
representation and only a small number of attorneys are available
to accept these requests. Accordingly, the district court must use
discretion in deciding which cases warrant a request for counsel.
To do otherwise would deprive clearly deserving litigants of an
opportunity to obtain legal representation. The dilemma is
unfortunate for litigants like [Mr. Moaz]. But the dilemma was not
the district court’s fault; that dilemma was the product of the
court’s lack of authority to compel legal representation or to
reimburse attorneys for their time.
Id. at 397.
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Moaz v. Denver International Airport, 747 F. App’x 708, 711 (10th Cir. 2018).
The Court denies Plaintiff’s motion to appoint counsel because the Court does not have
the authority to require appointment of counsel. The Court declines to request legal
representation for Plaintiff. It appears the Complaint should be dismissed based on the
deficiencies identified above. It also appears that Plaintiff is sufficiently able to present his
claims which do not involve complex legal issues. Plaintiff’s Complaint shows that he can do
legal research, identify the relevant legal standards and clearly present his arguments to the
Court. The Court refers Plaintiff to the District of New Mexico’s Guide for Pro Se Litigants
(October 2022) which, on page 6, lists resources for legal representation.
Case Management
Generally, pro se litigants are held to the same standards of professional
responsibility as trained attorneys. It is a pro se litigant’s responsibility to become
familiar with and to comply with the Federal Rules of Civil Procedure and the
Local Rules of the United States District Court for the District of New Mexico (the
“Local Rules”).
Guide for Pro Se Litigants at 4, United States District Court, District of New Mexico (October
2022). The Local Rules, the Guide for Pro Se Litigants and a link to the Federal Rules of Civil
Procedure are available on the Court’s website: http://www.nmd.uscourts.gov.
Failure to comply with Court Orders and the Federal and Local Rules of Civil Procedure
interferes with the judicial process and may result in monetary and non-monetary sanctions
including filing restrictions and dismissal of this case. See Fed. R. Civ. P. 41(b) (“If the plaintiff
fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss
the action”); Gustafson v. Luke, 696 F. App’x 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
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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)).
Compliance with Rule 11
The Court reminds Plaintiff of his obligations pursuant to Rule 11 of the Federal Rules of
Civil Procedure. See Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008) (“Pro se status
does not excuse the obligation of any litigant to comply with the fundamental requirements of
the Federal Rules of Civil and Appellate Procedure.”). Rule 11(b) provides:
Representations to the Court. By presenting to the court a pleading, written
motion, or other paper--whether by signing, filing, submitting, or later advocating
it--an attorney or unrepresented party certifies that to the best of the person’s
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances:
(1) it is not being presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for
further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information.
Fed. R. Civ. P. 11(b). Failure to comply with the requirements of Rule 11 may subject Plaintiff to
sanctions, including monetary penalties and nonmonetary directives. See Fed. R. Civ. P. 11(c).
IT IS ORDERED that:
(i) 	Plaintiff shall, within 21 days of entry of this Order, either pay the $405.00 fee or
file an Application to Proceed in District Court Without Prepaying Fees or Costs
(Long Form). Failure to timely pay the $405.00 fee or file a Long Form
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Application, and follow all instructions in the Long Form Application, may result
in dismissal of this case.
(ii) 	The Clerk shall send to Plaintiff, together with a copy of this Order, an
“Application to Proceed in District Court Without Prepaying Fees or Costs (Long
Form).”
(iii) 	Plaintiff shall, within 21 days of entry of this Order: (a) show cause why the Court
should not dismiss this case or (b) file an amended complaint. Failure to timely
show cause or file an amended complaint may result in dismissal of this case.
(iv) 	Plaintiff’s Motion for Appointment of Counsel, Doc. 2, filed January 30, 2026, is
DENIED.
_____________________________________
UNITED STATES MAGISTRATE JUDGE
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