Cordova v. Calvary Church et al
Filing
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Order by Magistrate Judge Steven C. Yarbrough granting 3 Motion for Leave to Proceed in forma pauperis and Order to Amend Complaint. (kfo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHAEL A. CORDOVA,
Plaintiff,
v.
Civ. No. 24-1084 SCY
CALVARY CHURCH and SKIP F. HEZIG,
Defendants.
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS
AND ORDER FOR AMENDED COMPLAINT
THIS MATTER comes before the Court on pro se Plaintiff’s Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983, Doc. 1, filed October 24, 2024 (“Complaint”), and Plaintiff’s
Application to Proceed in District court Without Prepaying Fees or Costs, Doc. 3, filed
October 24, 2024.
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 F. App’x 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 District Court Without Prepaying
Fees or Costs. Plaintiff signed an affidavit stating he is unable to pay the costs of these
proceedings and stated his average monthly income amount during the past 12 months is $0.00.
Plaintiff also stated in his Complaint that he is homeless. See Complaint at 1. The Court finds
that Plaintiff is unable to pay the costs of this proceeding because Plaintiff signed an affidavit
stating he is unable to pay the costs of these proceedings and because Plaintiff is homeless and
has had no income during the past 12 months.
Order for Amended Complaint
Plaintiff, who resides in New Mexico, asserts claims pursuant to 42 U.S.C. § 1983
against Calvary Church and Pastor Skip F. Hezig; both Defendants are citizens of New Mexico.
See Complaint at 1-2. Plaintiff refers to a daughter and his wife, several vehicles and “family
memb[e]r’s loss of 3 ret[i]rement jobs.” Id. at 2. Some portions of Plaintiff’s handwritten
responses in the Complaint form are illegible.
The Complaint fails to state a claim pursuant to 42 U.S.C. § 1983. “The two elements of
a Section 1983 claim are (1) deprivation of a federally protected right by (2) an actor acting
under color of state law.” Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016).
There are no allegations that Defendants deprived Plaintiff of a federally protected right or that
Defendants were acting under color of state law.
It is not clear whether Plaintiff is asserting claims pursuant to other federal or state laws
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because there are no allegations describing what each Defendant did to Plaintiff, when they did it
and what specific legal right Plaintiff believes each Defendant violated. 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.”).
If Plaintiff is asserting state-law claims, the Court notifies Plaintiff that it does not have
diversity jurisdiction over Plaintiff’s state-law claims. See 28 U.S.C. § 1332 (“The district courts
shall have original jurisdiction of all civil actions where the matter in controversy exceeds the
sum or value of $75,000 . . . and is between – (1) citizens of different states”). To invoke
diversity jurisdiction, “a party must show that complete diversity of citizenship exists between
the adverse parties and that the amount in controversy exceeds $75,000.” Symes v. Harris, 472
F.3d 754, 758 (10th Cir. 2006). “Complete diversity is lacking when any of the plaintiffs has the
same residency as even a single defendant.” Dutcher v. Matheson, 733 F.3d 980, 987 (10th Cir.
2013). If the Court dismisses Plaintiff’s federal law claims, then the Court may dismiss
Plaintiff’s state-law claims. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to
exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all
claims over which it has original jurisdiction.”); Barnett v. Hall, Estill, Hardwick, Gable, Golden
& Nelson, P.C., 956 F.3d 1228, 1238 (10th Cir. 2020) (“The Supreme Court has encouraged the
practice of dismissing state claims or remanding them to state court when the federal claims to
which they are supplemental have dropped out before trial.”).
The Court orders Plaintiff to file an amended complaint. The amended complaint must
clearly explain what each Defendant did to Plaintiff, when each Defendant did it, how each
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Defendant’s action harmed Plaintiff and what specific legal right Plaintiff believes each
Defendant violated. See Nasious, 492 F.3d at 1163. For each claim Plaintiff asserts pursuant to
federal law, the amended complaint “must identify the statutory or constitutional provision under
which the claim arises, and allege sufficient facts to show that the case is one arising under
federal law.” Davison v. Grant Thornton LLP, 582 F. App’x 773, 775 (10th Cir. 2014) (quoting
Firstenberg v. City of Santa Fe, 696 F.3d 1018, 1023 (10th Cir. 2012), and Martinez v. U.S.
Olympic Committee, 802 F.2d 1275, 1280 (10th Cir. 1986)). The amended complaint must also
comply with the Federal and Local Rules of Civil Procedure.
The Court notifies Plaintiff that it will not consider illegible statements.
Service on Defendants
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 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 (Oct.
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.
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Compliance with Rule 11
The Court reminds Plaintiff of his 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 Plaintiff shall, within 21 days of entry of this Order, file an
amended complaint. Failure to timely file an amended complaint may result in dismissal of this
case.
_____________________________________
UNITED STATES MAGISTRATE JUDGE
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