Dailey v. United States Attorney's Office et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHAEL ANTHONY DAILEY,
Plaintiff,
v. 	No. 1:26-cv-02589-DHU-JFR
UNITED STATES ATTORNEY’S OFFICE FOR
THE DISTRICT OF NEW MEXICO,
UNITED STATES MARSHALS SERVICE,
AMINISTRATIVE OFFICES OF STATE OF NEW MEXICO COURTS,
BERNALILLO COUNTY,
CITY OF ALBUQUERQUE,
METROPOLITAN COURT,
SECOND JUDICIAL COURT,
ALBUQUERQUE POLICE DEPARTMENT,
BERNALILLO COUNTY SHERIFF’S OFFICE and
DOES 1-10,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER comes before the Court on pro se Plaintiff’s Emergency Petition for
Federal Enforcement and Protection of a Cooperating Witness Pursuant to 18 U.S.C. § 1513
without Witness Pertetion [sic], Doc. 1, filed August 6, 2026 (“Complaint”). Plaintiff states the
purpose of his Emergency Petition:
is to Notify the Court and the United States Marshal[s] Service of severe, active,
systemic, and life-threatening retaliation being perpetrated against a documented
federal 	informant, 	[Plaintiff] 	Michael Anthony 	Dailey, 	and 	his 	immediate
household, 	following 	substantial 	assistance 	provided 	to 	the 	United 	States
government resulting in nationwide RICO, human smuggling, and cross-state
criminal convictions.
Complaint at 1. 	After describing his “background of joint federal cooperation” and “ongoing
witness retaliation and record fraud” allegedly beginning in June 2023, Plaintiff asks for the
following “immediate federal protective relief:”
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A. 	Order the United States Marshals Service to immediately intervene, review
the 5K1.1 cooperation record and FBI informant files of Plaintiff and
[another person who “worked directly as an active co-informant alongside
the Plaintiff”], and ensure his safety from fraudulent arrest, extrajudicial
property theft, or forced psychiatric confinement;
B. 	Order an immediate federal investigation into the ongoing violations of
18 U.S.C. § 1513 (Witness Retaliation), 18 U.S.C. § 1708 (Mail Theft), and
constitutional deprivations under Sandin v. Conn[e]r and Wilkinson v.
Austin1 being carried out by the state court clerks, federal probation officers,
local municipal agents, police departments, and commercial housing
operation named herein; Michael Dailey v. Robert U[l]ibarri
(iii) 	Coordinate via the FBI Victim-Witness Services Division to locate, protect,
and secure Plaintiff’s minor child in Midland, Texas.
Complaint at 6. Plaintiff does not request any other relief. See Complaint at 6.
United States Magistrate Judge John F. Robbenhaar notified Plaintiff of the following
deficiencies in the Complaint and ordered Plaintiff to show cause why the Court should not dismiss
this case:
(i) 	The Court cannot grant Plaintiff’s “Emergency Petition” for “immediate” relief
because Plaintiff has not shown that any Defendants have received notice of his
request for injunctive relief and has not certified in writing any efforts Plaintiff
made to give notice and any reasons why it should not be required; Rule 65 of the
Federal Rules of Civil Procedure states that the Court may issue a preliminary
injunction only on notice to the adverse party and may issue a temporary restraining
order without notice only if the movant certifies in writing any efforts made to give
notice and reasons why notice should not be required.
1 Sandin v. Conner, 515 U.S. 472 (1995) and Wilkinson v. Austin, 545 U.S. 209 (2005) address the
process due regarding liberty interests of prisoners.
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(ii) 	It does not appear that the Court has jurisdiction over Plaintiff’s claims against the
United States Attorney’s Office and the United States Marshals Service due to the
Federal Government’s sovereign immunity and Plaintiff’s failure to cite any
statutory text unequivocally expressing a waiver of the Federal Government’s
sovereign immunity for the claims Plaintiff is asserting against the United States
Attorney’s Office and the United States Marshals Service.
(iii) 	Third, Plaintiff fails to state claims pursuant to 18 U.S.C. § 1513, Retaliating
against a witness, victim, or an informant, and 18 U.S.C. § 1708, Theft or receipt
of stolen mail matter generally, because Sections 1513 and 1708 are criminal
statutes; criminal statutes do not provide for private civil causes of action.
(iv) 	It appears Plaintiff’s claims against the Albuquerque Police Department and the
Bernalillo County Sheriff’s Office should be dismissed because the Complaint does
not show that the Albuquerque Police Department and the Bernalillo County
Sheriff’s Office are separate suable entities.
(v) 	It appears Plaintiff’s municipal liability claims against the City of Albuquerque and
Bernalillo County should be dismissed because the Complaint does not allege
sufficient facts showing that those officers and deputies committed constitutional
violations or that a City of Albuquerque or Bernalillo County policy or custom was
the moving force behind any constitutional violations.
(vi) 	Plaintiff has not shown that the Court has jurisdiction over Plaintiff’s claims against
the Administrative Office of the State of New Mexico Courts, Second Judicial
District Court or Metropolitan Court due to the State of New Mexico’s Eleventh
Amendment sovereign immunity and Plaintiff’s failure to show that any of the three
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exceptions to the Eleventh Amendment's guarantee of sovereign immunity to states
apply in this case.
Order to Show Cause, Doc. 5, filed August 10, 2026. Judge Robbenhaar also ordered Plaintiff to
file an amended complaint and notified Plaintiff that failure to timely show cause and file an
amended complaint may result in dismissal of this case. 	See Order to Show Cause at 9. Judge
Robbenhaar subsequently granted Plaintiff’s motion and extended the deadline for responding to
the Order to Show Cause from August 31, 2026, to October 1, 2026. 	See Order, Doc. 9, filed
August 27, 2026. Plaintiff did not show cause, file an amended complaint or otherwise respond to
the Order to Show Cause by the October 1, 2026, deadline.
The Court dismisses this case without prejudice because Plaintiff has not complied with
Judge Robbenhaar’s Order to show cause and file an amended complaint. 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 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)).
IT IS ORDERED that this case is DISMISSED without prejudice.
_________________________________
UNITED STATES DISTRICT JUDGE
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