Serna v. Keleher

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 3, 2024
• Docket: 23-2092
• Status: Unpublished

Opinion

Appellate Case: 23-2092 Document: 010110977556 Date Filed: 01/03/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT January 3, 2024 _________________________________ Christopher M. Wolpert Clerk of Court MIKE R. SERNA,

Plaintiff - Appellant,

v. No. 23-2092 (D.C. No. 1:23-CV-00288-MV-JFR) WILLIAM KELEHER, (D. N.M.)

Defendant - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before PHILLIPS, BALDOCK, and McHUGH, Circuit Judges. _________________________________

Mike Serna filed a pro se lawsuit in United States District Court for the

District of New Mexico, alleging due process claims under 42 U.S.C. § 1983 and

related state-law claims against William Keleher, who had been appointed as a

Special Master in a state foreclosure case against Mr. Serna. The district court

dismissed the claims, and Mr. Serna appealed. Exercising jurisdiction under

28 U.S.C. § 1291, we affirm.

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-2092 Document: 010110977556 Date Filed: 01/03/2024 Page: 2

This appeal stems from a foreclosure action to collect on a judgment against

Mr. Serna and his wife Emma Serna. Mr. Keleher was appointed Special Master in

the action and proceeded with the sale of the Serna’s residence. Mr. Serna contends

the state court judgment underlying the foreclosure action was erroneous and that

Mr. Keleher’s actions therefore were improper.

In August 2022, Emma Serna filed an action in the District of New Mexico

asserting a § 1983 due process claim and related state-law claims based on

Mr. Keleher’s actions as the Special Master. She later filed an amended complaint

adding her husband as a plaintiff. The district court dismissed the § 1983 claims with

prejudice and declined to exercise jurisdiction over the state-law claims.

Only a few days after the dismissal of the first federal lawsuit, Mr. Serna

filed a second lawsuit against Mr. Keleher, again asserting § 1983 claims and related

state-law claims. The district court held that (1) Mr. Serna’s lawsuit is barred by the

doctrine of claim preclusion, and (2) in the alternative Mr. Keleher is entitled to

quasi-judicial immunity. It therefore dismissed the lawsuit and again declined to

exercise jurisdiction over the state-law claims. Mr. Serna timely appealed.

Mr. Serna’s opening brief fails to challenge the district court’s holding that his

claims are barred by claim preclusion. “Under [Fed. R. App. P.] 28, which applies

equally to pro se litigants, a brief must contain more than a generalized assertion of

error, with citations to supporting authority.” Garrett v. Selby Connor Maddux &

Janer, 425 F.3d 836, 841 (10th Cir. 2005) (ellipsis and internal quotation marks

omitted). Although we review a pro se litigant’s pleadings liberally, we will not

2 Appellate Case: 23-2092 Document: 010110977556 Date Filed: 01/03/2024 Page: 3

“take on the responsibility of serving as the litigant’s attorney in constructing

arguments and searching the record.” Id. at 840. Therefore, any argument not

clearly made in a party’s opening brief will be deemed waived. Toevs v. Reid,

685 F.3d 903, 911 (10th Cir. 2012). Accordingly, we hold that Mr. Serna has waived

any challenge to the district court’s ruling that his claims are barred by claim

preclusion.1 Accordingly, we affirm the dismissal of the lawsuit.

Entered for the Court

Carolyn B. McHugh Circuit Judge

1 Having affirmed on the district court’s claim preclusion analysis, we need not address its alternative holding that Mr. Keleher is entitled to quasi-judicial immunity.