United States District Court, D. New Mexico
Denise-Bradford: Holmes Mimbres, New Mexico Plaintiff pro se
M. Martinez Law Office of Jonlyn M. Martinez, LLC
Albuquerque, New Mexico Attorney for the Defendants
MEMORANDUM OPINION AND ORDER DENYING MOTION PURSUANT
TO RULE 52(B) OF THE FEDERAL RULES OF CIVIL
MATTER comes before the Court on the Plaintiff's
Reply to Motion to Dismiss with Prejudice by Judge James O.
Browning Motion Pursuant to F.R.C.P. 52(b), filed October 16,
2019 (Doc. 33)(“Motion to Amend”). Because
Plaintiff Denise-Bradford: Holmes has not demonstrated
manifest legal or factual error on the Court's part, and
raises no newly discovered evidence, the Court denies the
Motion to Amend and declines to amend its conclusions.
Court provides a detailed history of the procedural
background of this case in its Memorandum Opinion and Order
Granting Motion to Dismiss, 2018 WL 461054, filed September
26, 2018 (Doc. 31)(“MOO”), and incorporates that
history by reference herein. Briefly, Denise-Bradford: Holmes
filed her Complaint on February 26, 2018 (Doc. 1), which she
then supplemented on March 14, 2018, see Pursuant to
Rule 15; Amended/Supplemental Pleading (Doc. 11), and amended
on March 20, 2018, see Pursuant to Rule 15; Amended
(Doc. 14)(collectively, the “Complaint”). The
Defendants moved to dismiss her Complaint on the basis of
failure to state a claim and qualified immunity on March 26,
2018. See Defendants' Motion to Dismiss
Plaintiff's Complaint, Plaintiff's Pursuant to Rule
15; Amended and Plaintiff's Addendum to Supplemental
Pleadings, With Prejudice (Doc. 16). The Honorable Gregory B.
Wormuth, United States Magistrate Judge for the District of
New Mexico, filed his Proposed Findings and Recommended
Disposition, pursuant to the Court's order of reference,
see Order of Reference Relating to Non-Prisoner Pro
Se Cases, filed July 13, 2018 (Doc. 28), on July 31, 2018
(Doc. 29)(“PFRD”). Following a de novo review,
the Court adopted Magistrate Judge Wormuth's PFRD in its
Memorandum Opinion and Order Granting Motion to Dismiss.
See MOO at 1; 2018 WL 461054, at *1.
Holmes filed the Motion to Amend on October 16, 2018.
See Motion to Amend at 1. Based on the title --
“Motion Pursuant to F.R.C.P. 52(b)” -- as well as
the language asking the Court to “make corrections,
” Motion to Amend at 7:15, the Court treats
Denise-Bradford: Holmes' filing as a motion under rule
52(b) of the Federal Rules of Civil Procedure. In it,
Denise-Bradford: Holmes again argues that she is not subject
to statutory law, because she is not a United States of
America citizen, and is therefore incapable of violating
federal or state statutes. See Motion to Amend at
3:3-4:27. More narrowly, she argues that the Court failed to
read her relevant documentation. See Motion to Amend
at 3:27-28. Denise-Bradford: Holmes also introduces arguments
for relief under the Seventh and Ninth Amendments to the
Constitution of the United States. See Motion to
Amend at 2:14-3:2; id. at 5:13; id. at
5:23-24. She denies that the Defendants are entitled to
immunity. See Motion to Amend at 6:26-7:3. Finally,
Denise-Bradford: Holmes argues that the Defendants failed to
serve their briefing on her. See Motion to Amend at
52(b) provides that, “[o]n a party's motion filed
no later than 28 days after the entry of judgment, the court
may amend its findings -- or make additional findings -- and
may amend the judgment accordingly.” Fed.R.Civ.P.
52(b). A rule 59 motion for a new trial may accompany a
motion under rule 52(b). See Fed.R.Civ.P. 52(b).
“A motion made pursuant to Rule 52(b) will only be
granted when the moving party can show either manifest errors
of law or fact, or newly discovered evidence; it is not an
opportunity for parties to relitigate old issues or to
advance new theories.” Blann v. Rogers, No.
11-2711-CM, 2014 WL 6895592, at *1 (D. Kan. Dec. 5,
2014)(Murguia, J.)(quoting Penncro Assocs., Inc. v.
Sprint Spectrum L.P., No. 04-2549-JWL, 2006 WL 1999121,
at *2 (D. Kan. July 17, 2006)(Lungstrum, J.)). See also
Lyons v. Jefferson Bank & Tr., 793 F.Supp. 989, 992
(D. Colo. 1992)(Babcock, J.)(denying rule 52(b) motion where
movant showed no manifest error of law or fact).
52(b) motion's purpose is “to correct manifest
errors of law or fact or, in some limited situations, to
present newly discovered evidence.” Fontenot v.
Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir.
1986)(citation omitted). Motions to amend should not be used
“to introduce evidence that was available at trial but
was not proffered, to relitigate old issues, to advance new
theories, or to secure a rehearing on the merits.”
Fontenot v. Mesa Petroleum Co., 791 F.2d at 1219
(citations omitted). The trial court has “considerable
latitude” when ruling on a motion to amend, and the
decision to grant or to deny is within its “sound
discretion.” Matthews v. C.E.C. Indus. Corp.,
202 F.3d 282, 1999 WL 1244491, at *7 (10th Cir.
1999)(unpublished table opinion).
as here, a party is proceeding pro se, the court is to
liberally construe her pleadings. See Casanova v.
Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010). The
court is not, however, required to “assume the role of
advocate for the pro se litigant.” Baker v.
Holt, 498 Fed.Appx. 770, 771 (10th Cir.
2012)(unpublished)(internal quotation marks omitted)(quoting
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991)). In other words, “[t]he broad reading of the
plaintiff's complaint does not relieve the plaintiff of
the burden of alleging sufficient facts on which a recognized
legal claim could be based.” Hall v. Bellmon,
935 F.2d at 1110.
Motion to Amend, Denise-Bradford: Holmes does not rely, nor
does she purport to rely, on any newly discovered evidence.
To succeed, therefore, on her Motion to Amend,
Denise-Bradford: Holmes must show that the Court made a
manifest error of law or fact in its MOO. Even construing her
Motion to Amend liberally, the Court concludes that
Denise-Bradford: Holmes has not demonstrated any manifest
error of law or fact.
extent that Denise-Bradford: Holmes continues to argue that
she is not a United States citizen, and is not subject to
federal or state statutory law, she attempts to relitigate an
issue the Court has already considered. In its legal
analysis, the Court determined that Denise-Bradford: Holmes
did not state a claim on which relief could be granted
“even if the Court accepts Holmes'
argument that she falls within the ambit of the FSIA's
definition of ‘foreign
state.'” MOO at 11-12; 2018 WL 4616054, at *5
(emphasis added). Rather, the Court determined that
Denise-Bradford: Holmes' alleged status as a
“non-statutory individual, ” Motion to Amend at
3:3-4, would at best serve as a defense in a criminal case.
See MOO at 12; 2018 WL 4616054, at *5. Nothing in
Denise-Bradford: Holmes' argument grants her a private
right of action to sue under the enumerated statutes, and
this lack of a private right of action was the basis for the
Court's decision. See MOO at 10-12; 2018 WL
4616054, at *5. The Court correctly concluded that
non-prosecutors do not have standing to maintain actions
under criminal statutes. See MOO at 10-11; 2018 WL
4616054, at *5. Indeed, the Court specifically identified
this inability to sue as the “fundamental barrier to
her claims.” MOO at 13; 2018 WL 4616054, at *5.
Denise-Bradford: Holmes does not forward any arguments that
demonstrate a manifest error with respect to this
determination. She also does not support her conclusory
assertion that the Court did not read her documentation with
any evidence of this alleged failure, or any cogent argument
that such documentation reveals a manifest error in the
Court's reasoning. See generally Motion to Amend
Holmes' attempts to introduce new theories of relief
under the Seventh and Ninth Amendments also fail, because she
may not introduce new legal theories on a motion to amend
under rule 52(b). See Fontenot v. Mesa Petroleum
Co., 791 F.2d at 1219; Blann v. Rogers, 2014 WL
6895592, at *1. Moreover, any attempt by Denise-Bradford:
Holmes to bring her claim under the Seventh or Ninth
Amendments would be doomed to fail for the same reasons as
her statutory claims, namely, the lack of a private right of
action. While 42 U.S.C. § 1983 provides a federal cause
of action against persons who violate federal rights, see
Conn v. Gabbert, 526 U.S. 286, 290 (1999), any claim
available under § 1983 is foreclosed because of
Denise-Bradford: Holmes' repeated and continued
insistence that ...