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Serna v. Webster

United States District Court, D. New Mexico

January 26, 2018

EMMA SERNA, d/b/a SERNA & ASSOCIATES CONSTRUCTION CO., LLC, Plaintiff,
v.
MARGETTE WEBSTER, et al., Defendants.

          THIRD PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         The Honorable James O. Browning referred this matter to the undersigned “to recommend to the Court an ultimate disposition of the case.” Doc. 151; see 28 U.S.C. §§ 636(b)(1)(B), (b)(3); Fed.R.Civ.P. 72(b)(1). The Court has reviewed the Mandate of the United States Court of Appeals for the Tenth Circuit, Doc. 165, and all pending filings. Because Plaintiff, Emma Serna, has failed to file an amended complaint or otherwise comply with Judge Browning's most recent Memorandum Opinion and Order, the Court recommends that this case be dismissed with prejudice and that filing restrictions be imposed upon her as set forth in the Order. See Doc. 153 at 91-92. Finally, all other pending motions should be denied as moot.

         I) BACKGROUND

         The full history of this case is set forth in the Second Proposed Findings and Recommended Disposition and will not be repeated here. See Doc. 118. Most basically, the case arose from a construction contract dispute between Serna and the Webster Defendants in state court. Id. at 4-5. Serna lost in state court. She now sues the Websters, their attorney, the attorneys that represented her, the judges that presided over her case, and various clerks and employees of the New Mexico courts and agencies that investigated her claims, generally asserting “that over thirty defendants have violated her constitutional rights and engaged in a widespread conspiracy against her.” Id. at 5-11.

         In all, Serna brought 26 counts against the Defendants. Id. at 11-18. In an exceedingly thorough Proposed Findings and Recommended Disposition, which addressed 53 separate filings, Magistrate Judge Lynch recommended that the Court dismiss most of Serna's claims and impose filing restrictions on her. Id. at 44. The Court adopted Judge Lynch's recommendations on September 30, 2017. Doc. 153. Relevant here, the Court ordered the following:

1. Serna may file one amended complaint as only to Defendants Chisholm, Simon and the Estate of Paul Becht. Serna must file the amended complaint within ten days from this Order's date of entry, and may not contain criminal charges of any kind.
2. Serna may show cause, in one written document, why filing restrictions should not be imposed against her. Serna must submit this document within ten days from this Order's date of entry and must not contain spurious allegations of bribery, collusion, or other fancies that the world has conspired against her.
3. The Clerk of Court is directed not to accept any other filings, other than those described in (1) and (2), from Serna in this matter until further Order of the Court.
4. Unless Serna files a timely and compliant response, the Court will impose the following restrictions on Serna on the eleventh day after this Order's date of entry:

         a. To obtain permission to proceed pro se against the Defendants named herein, Serna must take the following steps:

i. File a petition with the Clerk of the Court requesting leave to file a pro se original proceeding against the Defendants.
ii. File with the Clerk a notarized affidavit, in proper legal form, which recites the issues she seeks to present, including a short discussion of the legal right asserted and why the Court has jurisdiction over the matter. The affidavit must certify, to the best of Serna's knowledge, that the legal arguments being raised 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 interposed for any improper purpose such as delay or to needlessly increase the cost of litigation, and that she will comply with all Federal and local rules of this Court. The affidavit must certify why the proposed new suit does not present the same issues decided by this Court and repeatedly addressed by the New Mexico courts and why another suit against these Defendants would not be an abuse of the system.
5. Serna shall submit these documents to the Clerk of the Court, who shall forward them to the Chief United States Magistrate Judge for review to determine whether to permit a pro se original proceeding. Without the Chief Magistrate Judge's approval, and the concurrence of the assigned Article III Judge, the Court will dismiss the action. If the Chief Magistrate Judge approves the filing, he or she shall enter an order indicating that the new proceeding shall proceed in accordance with the Federal Rules of Civil Procedure.
6. Serna shall have ten days from the date of this order to file written objections, limited to fifteen pages, to these proposed restrictions. If Serna does not file objections, the restrictions shall take affect eleven days from the date of this order. The filing restrictions shall apply to any matter filed after that time. If Serna timely files objections, ...

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