Gardner v. State of New Mexico et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
WILLIAM GARDNER,
Plaintiff,
v. 	No. 1:25-cv-00730-SMD-SCY
STATE OF NEW MEXICO,
NEW MEXICO BOARD OF DENTAL HEALTH,
CHARLES SCHUMACHER, in his official capacity,
JENNIFER THOMPSON, in her official capacity,
LAUREN CUNNINGHAM, in her official capacity,
JEFFREY WEATON, in his official capacity,
MELISSA BARBARA, in her official capacity,
DAVID WARREN, in his official capacity,
BURRELL TUCKER, in his official capacity,
JOLYNN GALVIN, in her official capacity,
DENISE MYRICK, in her official capacity,
HOLLY BEAUMONT, in her official capacity,
NEW MEXICO DEPARTMENT OF JUSTICE,
DELILIA TENORIO, in her official capacity,
NEW MEXICO REGULATION AND LICENSING DEPARTMENT, and
ROBERTA PEREA, in her official capacity,
Defendants.
ORDER DENYING PLAINTIFF’S MOTION TO RECONSIDER
This case arises in part from Defendants’ failure to reinstate pro se Plaintiff’s revoked
dental license. See Verified Complaint for Violations of the New Mexico Civil Rights Act, Section
1983 Claims, Prima Facie Claim of Civil Aiding, Abetting, Civil Conspiracy, FOIA/IPRA
Violations for Damages and Injunctive Relief at 5, Doc. 1, filed August 1, 2025 (“Complaint”).
United States Magistrate Judge Steven C. Yarbrough ordered Plaintiff to either show cause
why the Court should not dismiss this case for lack of jurisdiction or file an amended complaint.
See Order to Show Cause at 3-7, Doc. 4, filed August 12, 2025.
The Court dismissed this case because Plaintiff did not show cause or file an amended
complaint by the September 2, 2025, deadline. See Order of Dismissal, Doc. 6, filed September 26,
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2025. The Court reopened this case after Plaintiff objected to the dismissal stating that he did not
receive the Order to Show Cause which the Clerk’s Office mailed to Plaintiff via the United States
Postal Service. See Order Reopening Case, Doc. 10, filed October 20, 2025 (ordering Plaintiff to
respond to the Order to Show Cause).
Plaintiff electronically filed an Amended Complaint on November 5, 2025. See Doc. 11;
Order to Show Cause at 4, 10 (granting Plaintiff’s motion to file electronically using CM/ECF);
Order Reopening Case at 3 (ordering Plaintiff, who electronically files documents in his other
cases, to file documents electronically in this case). Plaintiff also electronically filed a motion to
transfer this case to the United States District Court in Las Cruces, New Mexico. See Motion for
Change of Venue, Doc. 15, filed December 3, 2025.
The Court subsequently dismissed this case for lack of subject-matter jurisdiction and
denied Plaintiff’s Motion for Change of Venue based on the Court’s dismissal of this case. See
Second Order of Dismissal, Doc. 16, filed December 29, 2025.
On January 10, 2026, Plaintiff filed a Motion to Reconsider the Order of Dismissal,
Doc. 18, and a Notice of Appeal, Doc. 19. The United States Court of Appeals for the Tenth Circuit
abated the appeal pending this Court’s disposition of Plaintiff’s Motion to Reconsider. 	See
Doc. 23, filed January 13, 2026.
Plaintiff asks the Court to reconsider its Second Order of Dismissal because “Plaintiff’s
failure to Respond was due to excusable neglect arising from defective service,” i.e. “the Court’s
failure to serve Plaintiff with the show cause order by physical mail.” Motion to Reconsider at 3.
Plaintiff states he “never received the show cause order by mail and never consented to electronic
service” and the “Court’s failure to provide Plaintiff with proper notice by physical mail violated
Plaintiff’s constitutional right to due process.” Motion to Reconsider at 4.
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The Court denies Plaintiff’s Motion to Reconsider. The Court properly served Plaintiff by
mailing the Order to Show Cause to Plaintiff. A paper is served under Rule 5 by “mailing it to the
person’s 	last 	known 	address—in 	which 	event 	service 	is 	complete 	upon 	mailing.”
Fed. R. Civ. P. 5(2)(C). The Court mailed the Order Reopening this case, which ordered Plaintiff
to respond to the Order to Show case, to Plaintiff via certified mail, return receipt. The returned
receipt states the Order Reopening this case was “unclaimed.” Doc. 13, filed November 18, 2025.
The Court also emailed the Order Reopening this case to Plaintiff’s email address that he uses for
electronic filing. 	Furthermore, Plaintiff did not fail to respond to the Order to Show Cause.
Plaintiff timely filed an Amended Complaint which states Plaintiff “amends the complaint in
accordance with” the Order to Show Cause. Amended Complaint at 1, Doc. 11, filed November 5,
2025.
Plaintiff states he never consented to electronic service. 	Plaintiff filed a motion seeking
permission to file electronically. See Doc. 2, filed August 1, 2025. The Court granted Plaintiff
permission to file electronically. See Doc. 4, filed August 12, 2025.
Plaintiff incorrectly states “[t]his case was dismissed for Plaintiff’s alleged failure to
respond to a show cause order.” Motion to Reconsider at 1. The Court, in its Second Order of
Dismissal, did not dismiss this case based on Plaintiff’s failure to respond to the Order to Show
Cause; the Court dismissed this case for lack of jurisdiction.
Plaintiff 	also 	asserts 	relief 	is 	warranted 	under 	Rule 	60(b)(6) 	for 	extraordinary
circumstances stating:
This Court has now dismissed this case twice in rapid succession—first in October
2025, requiring reinstatement (Doc. 10), and now again in December 2025. This
pattern suggests a rush to clear the docket rather than a careful consideration of
Plaintiff’s rights.
Motion to Reconsider at 4. The first dismissal was based on Plaintiff’s failure to respond to the
Order to Show Cause. After Plaintiff objected, the Court reopened this case and gave Plaintiff
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another opportunity to respond to the Order to Show Cause. The second dismissal was entered
after the Court’s careful consideration of Plaintiff’s Amended Complaint and the relevant law. The
Court did not enter the first or second dismissal in “a rush to clear the docket.” See Fed. R. Civ. P. 1
(stating the Court should construe, administer and employ the Federal Rules of Civil Procedure
“to secure the just, speedy, and inexpensive determination of every action”) (emphasis added).
Plaintiff asserts another circumstance justifying relief from the Second Dismissal Order is
the Court’s dismissal of this case “without addressing Plaintiff’s venue concerns” which “creates
an appearance of impropriety.” 	Motion to Reconsider at 4. 	In his Motion to Change Venue,
Plaintiff asserts “there is bias or prejudice in the original court that would prevent a fair trial” and
that he “is required to actively prosecute this case in accordance with federal rules of civil
procedure, but has been blocked at every corner.” Doc. 15 at 2-3. The Court denied Plaintiff’s
Motion to Change Venue because it was dismissing this case, not because of bias or prejudice. See
United States v. Wells, 873 F.3d 1241, 1252 (10th Cir. 2017) (“adverse rulings cannot in themselves
form the appropriate grounds for disqualification”). Plaintiff has not set forth any factual grounds
that would cause a reasonable, objective person, knowing all the relevant facts, to question the
undersigned’s impartiality. 	See United States v. Martinez, 92 F.4th 1213, 1255 (10th Cir. 2024)
(“The inquiry is limited to outward manifestations and reasonable inferences drawn therefrom . . .
the judge's actual state of mind, purity of heart, incorruptibility, or lack of partiality are not the
issue”). Plaintiff sought a change of venue stating:
he has requested a jury trial and it is expected that most of jury pools have a
connection with familial name and connection with the Defendants in Albuquerque
and Santa Fe. The fundamental constitutional right in the United States is to a fair
trial by an impartial jury.
Motion to Change Venue at 3. The impartiality of a jury pool for a trial in Albuquerque or Santa
Fe is not relevant in this case because the Court has determined it does not have jurisdiction over
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this case. Furthermore, because the undersigned sits in Las Cruces, any trial in this case would be
held in Las Cruces.
Finally, Plaintiff states he has a related case pending before this Court, No. 1:25-cv-421-
SMD-SCY, which presents the same federal question of law” which “further supports Plaintiff’s
venue concerns and the need for fairness.” Motion to Reconsider at 5. Plaintiff does not explain
why the related case supports the Court’s jurisdiction over this case.
IT IS ORDERED that Plaintiff’s Motion to Reconsider Order of Dismissal, Doc. 18, filed
January 10, 2026, is DENIED.
_________________________________
UNITED STATES DISTRICT JUDGE
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