Diaz v. King

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT April 27, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
CARLOS L. DIAZ, pro se, in his personal
capacity and in and for the estate of
Edmundo B. Diaz as brother and personal
representative of the estate,
Plaintiff - Appellant,
v. No. 16-2227
(D.C. No. 1:14-CV-01086-KG-SCY)
GARY KING, New Mexico Attorney (D.N.M.)
General; HONORABLE JAMES
LAWRENCE SANCHEZ; HONORABLE
ALLEN SMITH; HONORABLE VIOLET
OTERO; CHARLES SANCHEZ, Hearing
Officer; HONORABLE WILLIAM
SANCHEZ, all acting in a capacity as
officers of the court in and for the
Thirteenth Judicial District Court, Valencia
County, all acting under color of law and
performing duties as officers of the court,
in their judicial capacity, official capacity,
personal capacity; ELIAS BARELA,
Attorney; LAW OFFICE OF BARELA,
Defendants - Appellees,
and
JEFF SESSIONS*, United States Attorney
General; HONORABLE JAMIE BACA,
Probate Judge,
Defendants.
*
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Jeff Sessions is substituted for Loretta E. Lynch as the respondent in this
action
.
_________________________________
ORDER AND JUDGMENT**
_________________________________
Before KELLY, MATHESON, and McHUGH, Circuit Judges.
_________________________________
Carlos L. Diaz got into a dispute with his late brother’s partner, Nancy Barela,
during the probate action following his brother’s death. Ms. Barela accused Mr. Diaz
of fathering her son, and sued him in New Mexico state court for a paternity test and
child support. Dissatisfied with both the probate and paternity proceedings, Mr. Diaz
filed this lawsuit against several judges involved in the actions, as well as a hearing
officer, Ms. Barela’s attorney, and others. The district court ultimately dismissed
Mr. Diaz’s claims against all defendants.
Liberally construing Mr. Diaz’s pro se opening brief, see Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005), it appears he makes
three arguments. First, he argues the district court erred by dismissing his claims
against two state judges, James Sanchez and Allen Smith, and a hearing officer,
Charles Sanchez, on judicial immunity grounds. Second, he argues the district court
erred by quashing service on Ms. Barela’s attorney, Elias Barela, and his law office,
**
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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and by subsequently dismissing Mr. Diaz’s claims against them. And third, he argues
the district court erred by denying his motion to recuse. We reject these arguments
and affirm.
I. Judicial Immunity
According to the amended complaint, James Sanchez and Allen Smith are New
Mexico district court judges who presided over various aspects of the paternity suit.
Charles Sanchez is a New Mexico hearing officer who conducted a hearing and
recommended a paternity test. Mr. Diaz sued them for damages and injunctive relief
under 42 U.S.C. § 1983 and New Mexico law claiming, among other things, that they
violated his constitutional rights. The district court found they were entitled to
judicial immunity, so it granted their motion to dismiss under Fed. R. Civ. P.
12(b)(6).
We review the district court’s ruling de novo. See Wasatch Equality v. Alta
Ski Lifts Co., 820 F.3d 381, 386 (10th Cir. 2016). We assume the facts alleged in the
complaint are true and make all reasonable inferences in Mr. Diaz’s favor. See id.“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).
As the district court explained, a judge is immune from damage suits unless
(1) he did not act in his judicial capacity or (2) he acted “in the complete absence of
all jurisdiction.” Stein v. Disciplinary Bd. of Sup. Ct. of N.M., 520 F.3d 1183, 1195
(10th Cir. 2008) (internal quotation marks omitted). And “unless a declaratory
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decree was violated or declaratory relief was unavailable,” § 1983 does not allow
injunctive relief against a judge acting in his judicial capacity. 42 U.S.C. § 1983.
This immunity extends to “others who perform functions closely associated with the
judicial process.” Dahl v. Charles F. Dahl, M.D., P.C. Defined Benefit Pension Tr.,
744 F.3d 623, 630 (10th Cir. 2014) (internal quotation marks omitted). New Mexico
law offers similar protection. See Edwards v. Wiley, 374 P.2d 284, 285 (N.M. 1962)
(“[J]udicial officers are not liable for the erroneous exercise of the judicial powers
vested in them, . . . [unless] they act wholly in excess of their jurisdiction.”);
Hunnicutt v. Sewell, 219 P.3d 529, 532 (N.M. Ct. App. 2009) (“[J]udicial immunity
has been extended to various persons whose adjudicatory functions or other
involvement with the judicial process have been thought to warrant protection . . . .”
(internal quotation marks omitted)).
We agree with the district court that James Sanchez and Allen Smith are
entitled to judicial immunity. The amended complaint acknowledges they acted in
their judicial capacities, see R. Vol. 1 at 73, and includes no facts suggesting “a
complete absence of all jurisdiction,” Stein, 520 F.3d at 1195 (internal quotation
marks omitted). Moreover, none of Mr. Diaz’s claims relate to declaratory relief.
See § 1983.
This immunity extends to Charles Sanchez, who performed well-established
judicial functions like holding hearings and making recommendations, see Butz v.
Economou, 438 U.S. 478, 513-14 (1978). Mr. Diaz admits Charles Sanchez acted in
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his capacity as a hearing officer, see R. Vol. 1 at 73, and does not dispute the district
court’s finding that he did not exceed his jurisdiction.
Mr. Diaz’s only argument on this issue is the conclusory assertion that the
district court erred, and he cites no legal authority supporting his position. This is
not enough to prevail on appeal. See Champagne Metals v. Ken-Mac Metals, Inc.,
458 F.3d 1073, 1092 (10th Cir. 2006). We agree with the district court that these
defendants are entitled to judicial immunity and affirm its order of dismissal.
II. Service of Process
Mr. Diaz next challenges the district court order quashing service on
Mr. Barela and his law office, as well as its subsequent order dismissing his claims
against them without prejudice. Mr. Diaz accused Mr. Barela of conspiring with
other defendants to violate his constitutional rights, but he had trouble serving
Mr. Barela. It appears Mr. Diaz mailed a copy of the summons and amended
complaint to Mr. Barela’s law office by certified mail, but the envelope was returned
marked “refused unable to forward.” R. Vol. 1 at 223. A process server then went to
the building where the office was located and served a woman who worked there, but
the woman did not work for Mr. Barela and was not authorized to accept service on
his behalf. The district court found these efforts did not satisfy the requirements for
serving an individual or business under Fed. R. Civ. P. 4(e) and (h). It therefore
quashed service and gave Mr. Diaz 30 days to re-serve Mr. Barela and his law office.
When Mr. Diaz made no effort to do so, the district court dismissed his claims for
untimely service under Fed. R. Civ. P. 4(m).
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We review de novo whether Mr. Diaz’s efforts to serve Mr. Barela and his law
office satisfied the requirements of Fed. R. Civ. P. 4(e) and (h). See Espinoza v.
United States, 52 F.3d 838, 840 (10th Cir. 1995). But we review the dismissal of
Mr. Diaz’s claims for abuse of discretion. See id.Mr. Diaz did not deliver copies of the summons and complaint to Mr. Barela,
leave copies at his dwelling, deliver copies to an authorized agent, or properly serve
Mr. Barela under New Mexico law. And Mr. Diaz does not argue he complied with
New Mexico law for serving a business or that he delivered copies of the summons
and complaint to an authorized agent of Mr. Barela’s law office. So we agree with
the district court that Mr. Diaz failed to satisfy the requirements for serving an
individual or business. See Fed. R. Civ. P. 4(e), (h)(1).
Likewise, we see no error in the district court’s subsequent order dismissing
Mr. Diaz’s claims against these defendants. If a defendant is not timely served, the
district court “must dismiss the action without prejudice against that defendant or
order that service be made within a specified time. But if the plaintiff shows good
cause for the failure, the court must extend the time for service for an appropriate
period.” Fed. R. Civ. P. 4(m). Mr. Diaz did not timely serve Mr. Barela or his law
office,† and did not attempt to re-serve them after the district court gave him more
†
Fed. R. Civ. P. 4(m) now requires service within 90 days after a complaint is
filed, but prior to December 1, 2015, the time limit was 120 days. Mr. Diaz filed his
amended complaint on December 29, 2014. The district court quashed service on
August 4, 2015, and dismissed Mr. Diaz’s claims against Mr. Barela and his law
office on January 21, 2016—more than a year after the complaint was filed and more
than 120 days after advising Mr. Diaz why his initial attempts at service failed.
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time and thoroughly explained why his initial efforts were unsuccessful. Mr. Diaz
does not argue he established good cause for failing to serve these defendants within
the time limit. Under the circumstances, the district court’s decision to dismiss
Mr. Diaz’s claims was entirely reasonable. See Front Range Equine Rescue v.
Vilsack, 844 F.3d 1230, 1233 (10th Cir. 2017) (A district court abuses its discretion
when it “enters an arbitrary, capricious, whimsical, or manifestly unreasonable
judgment.” (internal quotation marks omitted)).
III. Motion to Recuse
Lastly, Mr. Diaz challenges the district court’s order denying his motion to
recuse. According to his motion, the district court judge had a duty to recuse because
his prior position as the United States Attorney for the District of New Mexico
somehow rendered him biased in favor of the New Mexico Attorney General, who
was a named defendant. The district court rejected this argument, finding that no
reasonable person who understood the circumstances would doubt the judge’s
impartiality.
We review the denial of a motion to recuse for an abuse of discretion. United
States v. Mendoza, 468 F.3d 1256, 1262 (10th Cir. 2006). A judge must “disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.”
28 U.S.C. § 455(a). This is true when “a reasonable person, were he to know all the
circumstances, would harbor doubts about the judge’s impartiality.” Mendoza,
468 F.3d at 1262 (internal quotation marks omitted). It takes more than speculation
or suspicion of bias to require recusal. See United States v. Cooley, 1 F.3d 985, 993
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(10th Cir. 1993). And prior adverse rulings or the judge’s familiarity with a
defendant are not enough. See id. at 994.
Mr. Diaz cites no facts supporting his argument, and he does not explain why
the judge’s prior position as a United States Attorney would cause a reasonable
person to doubt his impartiality in a case involving the New Mexico Attorney
General. To the extent Mr. Diaz’s accusations are based on the judge’s rulings
against him, this is not enough to warrant recusal. Under the circumstances, the
district court did not abuse its discretion by denying Mr. Diaz’s motion.
IV. Conclusion
We affirm.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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