United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
FASHING UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on defendant the Honorable Paul
Kelly's Motion to Dismiss and Memorandum in Support,
filed February 7, 2018. 18-cv-9, Doc. 9. Plaintiff Andrew
Ross had through February 21, 2018, to file a response to the
motion. Ross did not file a response to the motion
to dismiss within the time prescribed. Ross's failure to
respond to the motion constitutes consent to grant the
motion. D.N.M.LR-Civ. 7.1(b).
Honorable Judith C. Herrera referred this case to me to
conduct hearings, if warranted, including evidentiary
hearings, and to perform any legal analysis required to
recommend to the Court an ultimate disposition of the case.
18-cv-9, Doc. 16. Having read the motion and being fully
advised in its premises, I find that the motion is well-taken
and recommend that it be granted, and that this case be
dismissed with prejudice.
Background and Procedural Posture
Kelly is a United States Circuit Judge, sitting by
designation in the District of New Mexico. Ross initiated
this lawsuit against Judge Kelly as the result of his
disagreement with Judge Kelly's post-judgment decisions
in the lawsuit styled Ross v. Balderas,
16-cv-1121-PJK/SMV. 18-cv-9, Doc. 1 at 1. In Ross v.
Balderas, Ross and Susan Gerard sought monetary damages,
injunctive relief and declaratory relief against
approximately 30 defendants, including the New Mexico
Attorney General and several state district court judges.
16-cv-1121, Docs. 1, 8. Although the complaint originally
arose out of a landlord/tenant dispute, Ross and Gerard
alleged that they were
victims of a massive conspiracy involving a criminal
enterprise as defined by the applicable RICO statues of the
United States (hereinafter “the Criminal
Enterprise”). The conspiracy involves almost the
entirety of the Santa Fe First Judicial District, the Santa
Fe Magistrate Court, the Santa Fe Sheriff's Department,
and at the helm of the Criminal Enterprise, the Attorney
General for the State of New Mexico . . . .
16-cv-1121, Doc. 8 at 2. All of the defendants moved to
dismiss the case or for summary judgment, and the Court
granted the dispositive motions. 16-cv-1121, Docs. 69, 121,
137, 144, 168, 169. Judge Kelly entered final judgment on
April 18, 2017. 16-cv-1121, Doc. 190.
14, 2017, Ross filed a notice of appeal of the final
judgment, and of the Court's order denying leave to
amend, both of which were entered on April 18, 2017.
16-cv-1121, Doc. 197. Ross also filed a motion for leave to
proceed on appeal without prepayment of costs or fees.
16-cv-1121, Docs. 207, 228. In the order denying the motion
for leave to proceed on appeal without prepayment of costs or
fees, the Court advised Ross “that he may file a motion
for leave to proceed on appeal in forma pauperis with the
United States Court of Appeals for the Tenth Circuit within
thirty (30) days after service of this order. Fed. R. App. P.
24(a)(5).” 16- cv-1121, Doc. 228. Ross did not file any
such motion with the Tenth Circuit. 10th Cir. No.
17-2070, Docket. On June 2, 2017, the Tenth Circuit issued a
deficiency notice and warned that that appeal could be
dismissed without further notice if the deficiency was not
corrected. 10th Cir. No. 17-2070, Doc.
01019819360. On June 13, 2017, the Tenth Circuit dismissed
Ross's appeal for failure to prosecute. 10th
Cir. No. 17-2070, Doc. 01019824239.
the District Court's final judgment, various defendants
requested attorney's fees and costs. 16-cv-1121, Docs.
87, 126, 155, 158, 175, 177. The Court denied fees as to some
defendants and granted fees as to other defendants.
16-cv-1121, Docs. 249, 250. On August 11, 2017, the Court
entered its final judgment on attorney's fees, and
ordered Arash Kashanian, Ross's former attorney, to
personally pay half the fees ordered. 16-cv-1121, Doc. 252.
Kashanian appealed the orders awarding attorney's fees
and costs and the final judgment on attorney's fees to
the Tenth Circuit. 16-cv-1121, Doc. 254. The Tenth Circuit
abated the appeal pending the district court's resolution
of a motion for reconsideration. 10th Cir. No.
17-2140, Doc. 01019878222. The District Court ruled on the
motion, and entered its first amended final judgment on
October 2, 2017. 16-cv-1121, Docs. 268, 269. The Tenth
Circuit lifted the abatement on October 4, 2017 and ordered
Kashanian to file an entry of appearance, docketing
statement, and transcript order form by October 13, 2017.
10th Cir. No. 17-2140, Doc. 01019881278. Because
Kashanian failed to file any of the preliminary documents as
required, the Tenth Circuit dismissed the appeal for lack of
prosecution. 10th Cir. No. 17-2140, Doc.
November 13, 2017, Ross filed a motion for reconsideration of
the order granting Robert Richards attorney's fees.
16-cv-1121, Doc. 285. Judge Kelly denied the motion and in
doing so, noted,
Mr. Richards has requested that Mr. Ross be placed under
filing restrictions and be ordered to undergo a
neuropsychological evaluation, which could lead to a
commitment proceeding or appointment of a guardian ad litem.
He also seeks attorney's fees and costs subsequent to the
order granting him fees.
16-cv-1121, Doc. 295 at 2-3. The Court declined to order such
relief. Id. at 3. Richards then sought to take
Ross's deposition in aid of judgment, which Ross opposed,
and Ross moved for a protective order. 16-cv-1121, Docs. 287,
289. Magistrate Judge Stephan Vidmar held a hearing on
Ross's motion for a protective order on December 4, 2017.
16-cv-1121, Doc. 298. On December 5, 2017, Judge Vidmar
allowed the deposition to go forward, but limited the
questioning to that which was “[i]n aid of the judgment
or execution.” 16-cv-1121, Doc. 300 at 4. Ross filed a
second motion for protective order on December 12, 2017,
which Judge Vidmar denied. 16-cv-1121, Docs. 302, 304. Judge
Kelly did not enter any of the orders on Ross's motions
for protective order regarding the depositions noticed by
Ross's failure to file a response to Judge Kelly's
motion constitutes consent to granting the motion, the Tenth
Circuit has encouraged district courts to decide dispositive
motions filed against pro se litigants on the merits. See
Woods v. Roberts, No. 94-3159, 1995 WL 65457, at *2
(10th Cir. 1995) (unpublished) (“[T]his circuit has
expressed concern that pro se litigants not have their suits
dismissed on summary judgment merely because they have failed
to comply with the technical requirements involved in
defending such a motion.”) (citing Hall v.
Bellmon, 935 F.2d 1106, 1111 (10th Cir.1991)); Jaxon
v. Circle K Corp., 773 F.2d 1138, 1140 (10th Cir.1985)
(“The rights of pro se litigants require
careful protection where highly technical requirements are