Xander v. Chaves County Sheriff's Office et al
MEMORANDUM OPINION AND ORDER by Magistrate Judge Gregory B. Wormuth DENYING AS MOOT 6 Motion for More Definite Statement; DENYING 11 Motion to File by Email; DENYING 12 Motion for Court Appointed Attorney; GRANTING 13 Motion for Leave to P roceed in forma pauperis; DENYING AS MOOT 14 Motion for Free Process; DENYING AS MOOT 19 Motion to Compel Documentation; DENYING AS MOOT 22 Motion for Expedited Hearing; and DISMISSING [1-2] Complaint WITHOUT PREJUDICE. Plaintiff may file an Amended Complaint by 6/30/2017. (km)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civ. No. 16‐1402 GBW/SMV
CHAVES COUNTY SHERIFF’S OFFICE, et al.,
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on:
(i) pro se Plaintiff’s Application to Proceed in District Court Without Prepaying
Fees or Costs (doc. 13);
(ii) Plaintiff’s Complaint (doc. 1‐2);
(iii) Plaintiff’s Motion for Free Process and Free Court Fees (doc. 14), filed January
(iv) Defendants’ Motion for More Definite Statement (doc. 6), filed December 29,
(v) Plaintiff’s Motion to Compel Documentation (doc. 19), filed January 23, 2017;
(vi) Plaintiff’s Motion to File by Email (doc. 11), filed January 6, 2017;
(vii) Plaintiff’s Motion for Court Appointed Attorney (doc. 12), filed January 6,
(viii) Plaintiff’s Motion for Expedited Hearing (doc. 22), filed April 21, 2017.
For the reasons stated below, the Court will GRANT Plaintiff’s Application,
DISMISS Plaintiff’s Complaint without prejudice, DENY AS MOOT Plaintiff’s Motion
for Free Process and Free Court Fees, Defendants’ Motion for More Definite Statement,
Plaintiff’s Motion to Compel Documentation, and Plaintiff’s Motion for Expedited
Hearing, and DENY Plaintiff’s Motion to File by Email and Plaintiff’s Motion for Court
This matter stems from various alleged interactions between Plaintiff and
Defendants over the course of a ten‐year period. See doc. 1‐2 at 1. Plaintiff, proceeding
pro se, contends that officers employed by Defendant Chaves County Sheriff’s Office
have committed a host of constitutional, federal, and state law violations throughout this
period. See generally id. Plaintiff initially filed her Complaint in the Fifth Judicial
District Court in Chaves County, New Mexico, on November 28, 2016, and Defendants
removed the case on the basis of federal question jurisdiction on December 23, 2016. See
doc. 1. Following removal, Defendants moved for an order directing Plaintiff to file a
more definite statement pursuant to Fed. R. Civ. P. 12(e). See doc. 6. Plaintiff filed a
Response thereto attempting to clarify some of the underlying facts of her Complaint.
See doc. 15. In her response, Plaintiff explained that she needed to obtain certain
documentation from Defendants in order to state her claims with any greater
specificity—i.e., to identify which officers are alleged to have committed which harms
on which dates within the applicable statute of limitations. See id. at 3‐6. In addition to
her Response, Plaintiff filed a flurry of other motions seeking (1) to file by email (doc. 11);
(2) the appointment of an attorney by the Court (doc. 12); (3) to proceed in forma pauperis
(doc. 13); and (4) to proceed without paying any costs or fees (doc. 14). Plaintiff also later
filed a Motion to Compel Documentation from Defendants (doc. 19) and a Motion for an
Expedited Hearing on all pending motions (doc. 22). This Order will address each of
A. 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 (1) a statement of all assets the person
possesses, and (2) 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) (unpublished) (quoting Ragan
v. Cox, 305 F.2d 58, 60 (10th Cir. 1962)). “[A]n application to proceed in forma pauperis
should be evaluated in light of the applicant’s present financial status.” Scherer v.
Kansas, 263 F. App’x 667, 669 (10th Cir. 2008) (unpublished) (citing Holmes v. Hardy, 852
F.2d 151, 153 (5th Cir. 1988)). “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,” nevertheless “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
Plaintiff signed an affidavit declaring that she is unable to pay the costs of these
proceedings and provided the following information: (1) her average monthly income
during the past 12 months was $735.00 and her income amount expected next month is
$735.00; (2) she owns no assets; (3) her monthly expenses are $860.00; and (4) she has no
cash and has $655.00 in a bank account. See generally doc. 13. Because her monthly
expenses exceed her monthly income, the Court finds that Plaintiff is unable to prepay
the fees to initiate this action. Accordingly, the Court will grant Plaintiff’s Application
to Proceed in District Court Without Prepaying Fees or Costs (doc. 13) and deny
Plaintiff’s Motion for Free Process and Free Court Fees (doc. 14) as moot.
B. Dismissal of Proceedings In Forma Pauperis
The statute governing proceedings in forma pauperis requires federal courts to
dismiss an in forma pauperis proceeding that “is frivolous or malicious; . . . fails to state a
claim on which relief may be granted; or . . . seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. § 1915(e)(2). “Dismissal of a pro se
complaint for failure to state a claim is proper only where it is obvious that the plaintiff
cannot prevail on the facts [she] has alleged and it would be futile to give [her] an
opportunity to amend.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007) (quoting
Curley v. Perry, 246 F.3d 1278, 1281 (10th Cir. 2001)). “In determining whether a
dismissal is proper, we must accept the allegations of the complaint as true and construe
those allegations, and any reasonable inferences that might be drawn from them, in the
light most favorable to the plaintiff.” Id. (quoting Gaines v. Stenseng, 292 F.3d 1222, 1224
(10th Cir. 2002)).
The Court looks to the specific allegations in the Complaint to determine whether
they plausibly support a legal claim for relief, which requires the factual allegations to
raise a right to relief above the speculative level. See Kay, 500 F.3d at 1217‐18 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Dismissal of an in forma pauperis
complaint as frivolous is not an abuse of discretion based on a determination that the pro
se litigant did not state a viable legal claim and that the “complaint and  subsequent
pleadings consist[ed] of little more than unintelligible ramblings[.]” See Triplett v.
Triplett, 166 F. App’x 338, 339‐340 (10th Cir. 2006) (unpublished). However, “pro se
litigants are to be given reasonable opportunity to remedy the defects in their
pleadings.” Hall v. Bellmon, 935 F.2d 1106, 1110 n.3 (10th Cir. 1991).
The Complaint alleges Defendants discriminated against Plaintiff because of her
sexuality and disability during several incidents.1 See doc. 1‐2. The first alleged
incident occurred when Defendants arrested Plaintiff “for domestic abuse that from their
report was for nothing more than ‘grabbing the girlfriend rudely by the jacket.’” Id. at
1. Plaintiff states that the arresting officers were responding to an emergency call after
Plaintiff injured herself falling off a porch, but that when they arrived they “started
harassing [Plaintiff and her girlfriend.]” Id. at 1‐2.
During another alleged incident, Plaintiff “called the sheriffs to report being
raped by her caregiver [at] which time 5 sheriffs arrived at her house, treated her as the
criminal, said things like ‘don’t worry your boyfriend will be back tomorrow’. . . . [and]
mocked and joked and refused to take a proper report.” Id. at 4. Defendants also
allegedly “refused to take a serious report on [Plaintiff’s claims she was being stalked]
for over 3 years, mocked and made fun of her with statements like ‘tell her how the
In addition, Plaintiff appended a list of “causes” to her Complaint listing at least eighteen other alleged
violations of her civil rights and New Mexico state law, although the list contains numerous repetitions
and scattershot citations without reference to the factual underpinnings of the claims, making it difficult to
parse with any accuracy. See doc. 1‐2 at 9‐12.
[G]ermans and [I]ndians are after you’” and “saying [Plaintiff] was delusional or crazy.”
Id. at 5. Plaintiff also alleges that Defendants “arrested or falsely imprisoned [Plaintiff]
multiple times when [Plaintiff] was doing nothing more than trying to file a true and
accurate police report,” which Plaintiff asserts are violations of her First and Fourth
Amendment rights. Id. at 6. The Complaint further alleges that Defendants:
. . . have broken into [Plaintiff’s] home over 10 times and falsely arrested
her and abused her by:
Shooting [Plaintiff] with their non[‐]lethal guns while [Plaintiff] was naked
in her bath tub.
Pepper spraying her 2 times on her own property.
Beating her black and blue by placing her handcuffed in their police cruiser
speeding down the road then throwing on the brakes.
Id. at 6‐7. In addition to claims pursuant to Title II of the Americans with Disabilities
Act, Plaintiff also asserts claims pursuant to 42 U.S.C. § 1983 for violations of
constitutional rights on the basis of the factual allegations described above.
The allegations in the Complaint are vague and conclusory. Plaintiff states that
Defendants discriminated against her because of her disability, but does not allege that
she is a disabled individual under the ADA, does not describe the adverse
discriminatory action and does not allege that she exhausted any applicable
administrative remedies. See generally doc. 1‐2. Plaintiff also alleges Defendants falsely
arrested her and violated her constitutional rights, but she fails to state with any
particularity what each Defendant did to Plaintiff, or when the Defendants committed
these alleged actions.
The Court will dismiss Plaintiff’s Complaint without prejudice because it fails to
state a claim. “[C]onclusory allegations without supporting factual averments are
insufficient to state a claim on which relief can be based . . . . [and] in analyzing the
sufficiency of the plaintiff’s complaint, the court need accept as true only the plaintiff’s
well‐pleaded factual contentions, not [her] conclusory allegations.” Hall, 935 F.2d at
1110 (internal citations omitted). “[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.” Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,
1163 (10th Cir. 2007).
Plaintiff may file an amended complaint within 21 days of entry of this Order.
See Hall, 935 F.2d at 1110 n.3 (“pro se litigants are to be given reasonable opportunity to
remedy the defects in their pleadings”). Failure to timely file an amended complaint
may result in dismissal of this case without prejudice.
The Court notes that Plaintiff attached 45 pages of exhibits to her Complaint,
many of which did not pertain to the stated factual allegations against the named
Defendants. Pursuant to the Local Rules, Plaintiff should not attach any exhibits to her
amended complaint unless they form the basis for the action. See D.N.M.LR‐10.4.
C. Motion to File by Email
The Court will deny Plaintiff’s request to file in this case by email or fax (doc. 11).
The Court does not accept documents for filing by email or facsimile. The “Guide for
Pro Se Litigants” and the “CM/ECF Administrative Procedures Manual” describe the
procedures and requirements for filing electronically.2
D. Motion for Court Appointed Attorney
“There is no constitutional right to appointed counsel in a civil case. However,
“[t]he court may request an attorney to represent any person unable to afford counsel.”
28 U.S.C. § 1915(e)(1)). “The decision to appoint counsel is left to the sound discretion
of the district court.” Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001). When
deciding whether to grant a litigant’s motion, the following factors guide the decision to
appoint counsel in a civil case: “the merits of the litigant’s claims, the nature of the
factual issues raised in the claims, the litigant’s ability to present [her] claims, and the
complexity of the legal issues raised by the claims.” Williams v. Meese, 926 F.2d 994, 996
(10th Cir. 1991)). Finally, the “burden is on the applicant to convince the court that
there is sufficient merit to his claim to warrant the appointment of counsel.” Hill v.
Both of those documents are available on the Court’s website at
SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004) (quoting McCarthy v.
Weinberg, 753 F.2d 836, 838 (10th Cir. 1985)).
In considering Plaintiff’s motion for the appointment of counsel, the Court has
carefully reviewed the Motion, relevant case law, and the pleadings filed in this case in
light of the above‐referenced factors. Plaintiff’s Motion states that a “court appointed
attorney . . . would help very much due to the [complexity] of this case,” that there are
“very complicated legal matters which stretch from causes[,] like in this case[,] of battery
and police abuse and neglect[,] to [foreign] consumer laws and new computer laws
[for] which there is very little precedent.” Doc. 12 at 1. Plaintiff further asserts that
“[a]ttempting all of these cases3 while only pro se is an incredible task not only
[requiring] the ability to [technically] submit the cases but also a very broad knowledge
[of] laws from civil rights to criminal.” Id. Plaintiff also notes that “she might be asked
to incriminate herself by an opposing attorney possibly in the form  of alleged slander
or harassment[,] as shown in her sequestered criminal cases [in which Defendants] have
already accused her of such.” Id. Finally, Plaintiff “begs the court to consider her
special circumstances [including] indigence and rural location as well.” Id. at 2.
These factors do not indicate that counsel should be appointed. Financial
hardship, while necessary for the appointment of counsel under 28 U.S.C. § 1915(e)(1), is
Plaintiff indicates that she is involved in other civil and criminal cases and asks that the Court appoint an
attorney to represent her in all of them, but she fails to identify any such cases.
not sufficient absent a showing of the factors articulated in Meese. One such factor—the
merits of the litigant’s claims—weighs against the appointment of counsel, given that
Plaintiff has yet to establish which, if any, of the alleged incidents underlying her claim
falls within the applicable statute of limitations by identifying when such incidents
occurred. See generally docs. 1‐2, 15. Indeed, Plaintiff has acknowledged that at least
one of the underlying instances, “when the [officers] broke into her house then shot her
while she was naked in her bath tub with their non[‐]lethal weapons,” took place outside
of the statute of limitations. See doc. 15 at 4.
Moreover, as discussed above, Plaintiff has failed to identify any particular
individual officer who committed the acts alleged. See docs. 1‐2, 15. Therefore, at
present, the only named Defendants are alleged to be responsible solely on the basis of
municipal liability for the actions of unidentified individual officers. However,
municipalities cannot be held liable for the acts of their employees under 42 U.S.C. § 1983
on the basis of a respondeat superior theory of liability. Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694 (1978); see also Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010).
Instead, “[a] plaintiff suing a municipality under section 1983 for the acts of one of its
employees must prove: (1) that a municipal employee committed a constitutional
violation; and (2) that a municipal policy or custom was the moving force behind the
constitutional violation.” Myers v. Okla. Cty. Bd. of Cty. Comm’rs, 151 F.3d 1313, 1316
(10th Cir. 1998). In order to meet this burden, a plaintiff must first “identify a
government’s policy or custom that caused the injury.” Schneider v. City of Grand
Junction Police Dep’t, 717 F.3d 760, 769 (10th Cir. 2013) (internal citation omitted). The
plaintiff is then required to show “that the policy was enacted or maintained with
deliberate indifference to an almost inevitable constitutional injury.” Id. The Tenth
Circuit has distilled these requirements into three specific elements: “(1) official policy or
custom[;] (2) causation[;] and (3) state of mind.” Id. Plaintiff has failed to offer any
basis for a claim of municipal liability, and has therefore failed to meet her burden to
convince the Court that her claims have merit. See SmithKline Beecham Corp., 393 F.3d at
Finally, Plaintiff’s Complaint does not present novel or complex legal claims, and
the factual issues raised therein do not require the assistance of counsel to articulate.
See generally doc. 1‐2. In sum, applying the relevant factors under Meese, the Court is not
persuaded that appointment of counsel is warranted in this case and will thus deny
Plaintiff’s Motion for Court Appointed Attorney (doc. 12).
E. Defendants’ Motion for More Definite Statement and Plaintiff’s
Motion to Compel
Defendants filed a Motion for More Definite Statement on the ground that “the
Complaint contains few facts or details that would allow Defendants to respond.” Doc.
6 at 1. Additionally, Plaintiff filed a Motion to Compel Documentation asking the Court
to “compel the defendants to produce all documentation . . . from every agency that was
involved with the Plaintiff at all.” Doc. 19. Because Plaintiff’s Complaint is due to be
dismissed, the Court will deny both of these motions as moot.
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).
Rule 4 provides that:
At the plaintiff’s request, the court may order that service be made by a
United States marshal or deputy marshal or by a person specially
appointed by the court. The court must so order if the plaintiff is
authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a
seaman under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c)(3).
The Court will not order service of Summons and Complaint on Defendants at
this time. The Court will order service if Plaintiff timely files an amended complaint
which states a claim, establishes that this Court has jurisdiction, and provides the
addresses of each named Defendant.
Based on the foregoing, IT IS ORDERED that:
(i) Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or
Costs (doc. 13) is GRANTED;
(ii) Plaintiff’s Motion for Free Process and Free Court Fees (doc. 14) is DENIED AS
(iii) Defendants’ Motion for More Definite Statement (doc. 6) is DENIED AS
(iv) Plaintiff’s Motion for Court Appointed Attorney (doc. 12) is DENIED;
(v) Plaintiff’s Motion for Expedited Hearing (doc. 22) is DENIED AS MOOT;
(vi) Plaintiff’s Motion to Compel Documentation (doc. 19) is DENIED as moot;
(vii) Plaintiff’s Motion to File by Email (doc. 11) is DENIED;
(viii) Plaintiff’s Complaint (doc. 1‐2) is DISMISSED WITHOUT PREJUDICE.
Plaintiff may file an amended complaint within 21 days of entry of this Order.
GREGORY B. WORMUTH
United States Magistrate Judge
Presiding by Consent
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