Lopez v. Fowler et al

Filing 5

MEMORANDUM OPINION AND ORDER by Magistrate Judge John F. Robbenhaar GRANTING #2 Plaintiff's Application for Free Process, and DENYING #3 Plaintiff's Motion for Appointment of Counsel. Plaintiff shall, within 21 days of entry of this Order: (a) show cause why the Court should not dismiss this case; and (b) file an amended complaint. (ajp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DEANNA LOUISE LOPEZ,
Plaintiff,
v.

No. 1:24-cv-00092-JFR

LANNY FOWLER and
ALLSUP’S CONVENIENCE STORES INC.,
Defendants.
MEMORANDUM OPINION AND ORDER
GRANTING MOTION TO PROCEED IN FORMA PAUPERIS,
DENYING MOTION FOR APPOINTMENT OF COUNSEL AND
ORDER TO SHOW CAUSE
THIS MATTER comes before the Court on pro se Plaintiff’s Complaint for Employment
Discrimination, Doc. 1, filed January 29, 2024 (“Complaint”), Plaintiff’s Application for Free
Process and Affidavit of Indigency, Doc. 2, filed January 29, 2024, and Plaintiff’s Motion for
Appointment of Counsel, Doc. 3, filed January 29, 2024 (“Motion to Appoint Counsel”).
Application to Proceed In Forma Pauperis
The statute for proceedings in forma pauperis, 28 U.S.C. § 1915(a), provides that the Court
may authorize the commencement of any suit without prepayment of fees by a person who submits
an affidavit that includes a statement of all assets the person possesses and that the person is unable
to pay such fees.
When a district court receives an application for leave to proceed in forma pauperis,
it should examine the papers and determine if the requirements of
[28 U.S.C.] § 1915(a) are satisfied. If they are, leave should be granted. Thereafter,
if the court finds that the allegations of poverty are untrue or that the action is
frivolous or malicious, it may dismiss the case[.]

Menefee v. Werholtz, 368 Fed.Appx. 879, 884 (10th Cir. 2010) (citing Ragan v. Cox, 305 F.2d 58,
60 (10th Cir. 1962). “The statute [allowing a litigant to proceed in forma pauperis] was intended
for the benefit of those too poor to pay or give security for costs....” Adkins v. E.I. DuPont de
Nemours & Co., 335 U.S. 331, 344 (1948). While a litigant need not be “absolutely destitute,”
“an affidavit is sufficient which states that one cannot because of his poverty pay or give security
for the costs and still be able to provide himself and dependents with the necessities of life.”
Id. at 339.
The Court grants Plaintiff’s Application to proceed in forma pauperis. Plaintiff signed the
Application and provided the following information “upon my oath or affirmation:” (i) Plaintiff's
only income amount is Disability Security Income, Medicaid and food stamps; (ii) Plaintiff’s
monthly expenses total $5,260.00; (iii) Plaintiff has $300.00 in cash and $300.00 in bank accounts;
and (iv) Plaintiff was unemployed during the past 12 months because she is disabled. The Court
finds that Plaintiff is unable to pay the costs of this proceeding because she is unemployed, her
only income is Disability Security Income, Medicaid and food stamps, and her monthly expenses
total $5,2560.00.
Motion to Appoint Counsel
Plaintiff asks the Court to appoint counsel due her “100% disability (mental)” pursuant to
N.M.S.A. § 43-1-1-4. Motion to Appoint Counsel at 1. Section 43-1-4 requires state courts to
appoint counsel to represent clients who have not retained counsel and are unable to do so for
proceedings under New Mexico Statutes Chapter 43 Commitment Procedures.
“[C]ivil litigants have no right to counsel.” Witmer v. Grady County Jail, 483 Fed.Appx.
458, 462 (10th Cir. 2012). The decision to appoint counsel is left to the “extremely broad”
discretion of the district court. Castner v. Colo. Springs Cablevision, 979 F.2d 1417, 1420 (10th

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Cir. 1992). While courts have authority to “request an attorney to represent a litigant who is
proceeding in forma pauperis,” Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006)
(emphasis added), the Court cannot "require an unwilling attorney to represent an indigent litigant
in a civil case," Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 298 (1989) (emphasis
added). Congress has not provided any mechanism, process, or funds to pay appointed counsel.
See 28 U.S.C. § 1915(e)(1). Thus, the Court not only considers the benefits of having a represented
plaintiff, but also must consider the hardship imposed on an attorney who is appointed to serve
without remuneration or compensation, as well as without assurance that he or she would have
funds available to assist in the investigation of claims, conduct formal discovery, retain experts,
pay witness fees, or otherwise defray the costs of litigation. Plaintiff has not cited, and the Court
has not found, any legal authority which would allow the Court to appoint counsel in this case.
The only legal authority cited by Plaintiff, N.M.S.A. § 43-1-4, does not apply to this Court or to
this type of proceeding.
The Court denies Plaintiff’s Motion to Appoint Counsel. The Court refers Plaintiff to the
District of New Mexico’s Guide for Pro Se Litigants (October 2022) which, on page 6, lists
resources for legal representation.
The Complaint
Plaintiff filed a Charge of Discrimination with the EEOC alleging that she was
discriminated against because of her disability in violation of the Americans with Disabilities Act
and the New Mexico Human Rights Act. See Complaint at 10 (Charge of Discrimination signed
by Plaintiff on April 24, 2018).
A plaintiff must initiate litigation on an ADA claim within ninety days from the date
he receives a “right to sue” letter from the EEOC. See 42 U.S.C. § 2000e–5(f)(1)
(providing filing deadlines for Title VII claims); 42 U.S.C. § 12117(a) (specifically
adopting Title VII filing deadlines for ADA claims). “These timing requirements
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are prerequisites to a civil suit.” Croy v. Cobe Labs., Inc., 345 F.3d 1199, 1202 (10th
Cir.2003).
Hall v. United Parcel Service. Inc., 101 Fed.Appx. 764, 765 (10th Cir. 2004).
Plaintiff states she received a “Notice of Right to Sue letter” on January 8, 2024, and
attached to her Complaint a copy of the EEOC right-to-sue letter which she apparently received
after requesting a copy of her file from the New Mexico Human Rights Bureau on December 1,
2023. Complaint at 5, 8-11. Plaintiff attached a copy of the EEOC’s right-to-sue letter which
indicates it was mailed to Plaintiff at “1500 Pacheco Street Box #89 Apt. 704, Santa Fe, NM
87505” on November 6, 2018, and states “Your lawsuit must be filed WITHIN 90 DAYS of your
receipt of this notice; or your right to sue based on this charge will be lost.” Complaint at 11
(emphasis in original) (the EEOC’s right-to-sue letter attached to the Complaint is stamped
“RECEIVED NOV 13 2018 HUMAN RIGHTS BUREAU”). “Generally, when the EEOC mails
a right-to-sue letter, ‘federal courts have presumed various receipt dates ranging from three to
seven days after the letter was mailed.’”

Panicker v. Compass Group U.S.A. Inc.,

712 Fed.Appx. 784, 786 (10th Cir. 2017) (quoting Lozano v. Ashcroft, 258 F.3d 1160, 1164 (10th
Cir. 2001) (collecting cases)). It appears that the 90-day deadline for Plaintiff to file a lawsuit
based on her EEOC charge was approximately February 11, 2019. Plaintiff has not alleged any
facts to support her statement that she received the EEOC’s “Notice of Right to Sue letter” on
January 8, 2024.
The Court orders Plaintiff to show cause why the Court should not dismiss this case based
on Plaintiff’s failure to timely file this lawsuit. If Plaintiff asserts the Court should not dismiss this
case, Plaintiff must file an amended complaint that alleges facts that support Plaintiff’s assertion
that the Court should not dismiss this case.

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The Court also orders Plaintiff to show cause why the Court should not dismiss this case
for failure to state a claim upon which relief can be granted. Plaintiff filed her Complaint using
the form “Complaint for Employment Discrimination.” Where the form Complaint prompts
plaintiffs to state the facts of their case, Plaintiff wrote: “Wrongful Termination of employment
2/26/2018, Retaliation, unequal terms & conditions, Failure to promote me to assistant manager
(pay) Unreasonable Accommodations.” Complaint at 5; see also Complaint at 4 (instructing
plaintiffs to “State how each defendant was involved and what each defendant did that caused the
plaintiff harm or violated the plaintiff’s rights, including the dates and places of that involvement
or conduct”). The Complaint fails to state a claim because it does not state what each defendant
did that caused Plaintiff harm or violated Plaintiff’s rights. See Nasious v. Two Unknown B.I.C.E.
Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007) (“[T]o state a
claim in federal court, a complaint must explain what each defendant did to him or her; when the
defendant did it; how the defendant’s action harmed him or her; and, what specific legal right the
plaintiff believes the defendant violated.”).
Plaintiff attached seven documents to the Complaint. The Court will not review the
attachments to determine whether Plaintiff can state a claim upon which relief can be granted. See
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 672 (10th Cir. 1998) (“we, like the district courts,
have a limited and neutral role in the adversarial process, and are wary of becoming advocates who
comb the record of previously available evidence and make a party's case for it”); Biogenics, Inc.
v. Kazen, 6 Fed.Appx. 689, 692 (10th Cir. 2001) (“Despite the liberal construction afforded pro se
litigants, the court will not construct arguments or theories for a pro se litigant.”). Any information
in the attachments that form a basis for Plaintiff’s claims must be set forth in allegations in an
amended complaint. The Court may consider the documents attached to the Complaint at a later

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stage in this case in accordance with the Federal Rules of Civil Procedure and the Federal Rules
of Evidence.
Proceeding in forma pauperis
Plaintiff is proceeding in forma pauperis. The statute governing proceedings in forma
pauperis states "the court shall dismiss the case at any time if the court determines that … the
action … fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2); see also
Webb v. Caldwell, 640 Fed.Appx. 800, 802 (10th Cir. 2016) ("We have held that a pro se complaint
filed under a grant of ifp can be dismissed under § 1915(e)(2)(B)(ii) for failure to state a claim …
only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would
be futile to give him an opportunity to amend").
While the Complaint can be dismissed under § 1915(e)(2)(B)(ii) for failure to state a claim
and for lack of jurisdiction, it is not obvious that it would be futile to give Plaintiff an opportunity
to amend. The Court grants Plaintiff leave to file an amended complaint.
Service
Section 1915 provides that the “officers of the court shall issue and serve all process, and
perform all duties in [proceedings in forma pauperis]”). 28 U.S.C. § 1915(d). The Court will not
order service at this time because the Court is ordering Plaintiff to file an amended complaint. The
Court will order service if: (i) Plaintiff files an amended complaint that states a claim over which
the Court has subject-matter jurisdiction; and (ii) files a motion for service which includes the
address of each Defendant.
Case Management
Generally, pro se litigants are held to the same standards of professional
responsibility as trained attorneys. It is a pro se litigant’s responsibility to become
familiar with and to comply with the Federal Rules of Civil Procedure and the Local

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Rules of the United States District Court for the District of New Mexico (the “Local
Rules”).
Guide for Pro Se Litigants at 4, United States District Court, District of New Mexico (October
2022). The Local Rules, the Guide for Pro Se Litigants and a link to the Federal Rules of Civil
Procedure are available on the Court’s website: http://www.nmd.uscourts.gov.
Compliance with Rule 11
The Court reminds Plaintiff of her obligations pursuant to Rule 11 of the Federal Rules of
Civil Procedure. See Yang v. Archuleta, 525 F.3d 925, 927 n. 1 (10th Cir. 2008) (“Pro se status
does not excuse the obligation of any litigant to comply with the fundamental requirements of the
Federal Rules of Civil and Appellate Procedure.”). Rule 11(b) provides:
Representations to the Court. By presenting to the court a pleading, written
motion, or other paper--whether by signing, filing, submitting, or later advocating
it--an attorney or unrepresented party certifies that to the best of the person's
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law
or by a nonfrivolous argument for extending, modifying, or reversing existing law
or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified,
will likely have evidentiary support after a reasonable opportunity for further
investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information.
Fed. R. Civ. P. 11(b). Failure to comply with the requirements of Rule 11 may subject Plaintiff to
sanctions, including monetary penalties and nonmonetary directives. See Fed. R. Civ. P. 11(c).
IT IS ORDERED that:

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(i)

Plaintiff’s Application for Free Process and Affidavit of Indigency, Doc. 2, filed
January 29, 2024, is GRANTED.

(ii)

Plaintiff’s Motion for Appointment of Counsel, Doc. 3, filed January 29, 2024, is
DENIED.

(iii)

Plaintiff shall, within 21 days of entry of this Order: (a) show cause why the Court
should not dismiss this case; and (b) file an amended complaint. Failure to timely
show cause and file an amended complaint may result in dismissal of this case.

_____________________________________
UNITED STATES MAGISTRATE JUDGE

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