Romero v. Cordova et al
Filing
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MEMORANDUM OPINION AND ORDER by District Judge Kea W. Riggs re 1 Complaint. IT IS ORDERED that within thirty (30) days of entry of this Order, Plaintiff shall show cause, if any, why the Notice should not be dismissed without prejudice for lack of jurisdiction. (gr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JOSHUA W. ROMERO,
Plaintiff,
v.
No. 24-cv-0076 KWR-GJF
FNU CORDOVA, et al,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Joshua Romero’s Notice of Claim (Doc. 1)
(Notice). Plaintiff was previously incarcerated and is proceeding pro se. His opening filing
purports to give notice of his claim under the New Mexico Tort Claims Act, N.M.S.A. § 41-4-1,
et. seq., (NMTCA). See Coffey v. McKinley County, 504 Fed. App’x 715, 719–20 (10th Cir.
2012) (notice of a NMTCA “claim for damages must be given to the appropriate governmental
entity”). Plaintiff alleges Sergeant Cordova and other officers used excessive force against him
in a state facility.
See Doc. 1 at 1.
The Notice is addressed to the Curry County Risk
Management Division and the Sheriff of Curry County. Id. However, the mailing envelope is
addressed to this Court. Id. at 3. The Notice does not cite additional authority beyond the
NMTCA and does not contain a request for relief. Id. at 1-2.
On January 23, 2024, the Clerk’s Office mailed Plaintiff a blank civil rights complaint, in
the event he intends to raise a federal claim under 42 U.S.C. § 1983. The Clerk’s Office also
mailed Plaintiff a blank motion to proceed in forma pauperis. Plaintiff did not return any
completed forms or amend the Notice to raise a § 1983 claim. The Court will therefore treat the
Notice as the operative pleading/complaint at this time.
Federal Courts only have authority to hear controversies arising under federal law (federalquestion jurisdiction) and controversies arising between citizens of different states (diversity
jurisdiction). See 28 U.S.C. §§ 1331, 1332. “[F]ederal question jurisdiction must appear on the
face of the complaint.” Firstenberg v. City of Santa Fe, N.M., 696 F.3d 1018, 1023 (10th Cir.
2012) (quotations omitted). Courts must “look to the way the complaint is drawn” to determine
whether it asserts a “right to recover under the Constitution and laws of the United States.” Id.
To establish diversity jurisdiction, “the complaint must allege that the plaintiff and defendant are
citizens of different states and that the amount in controversy is greater than $75,000.” Rice v.
Off. of Servicemembers’ Grp. Life Ins., 260 F.3d 1240, 1245 (10th Cir. 2001).
The Notice here does not satisfy either standard. Plaintiff has not established federal
question jurisdiction, as the Notice does not assert a right to recover under the Constitution or
federal law. As noted above, the Notice only seeks relief under the NMTCA. There are also no
allegations regarding the citizenship of any party or the amount in controversy for purposes of
diversity jurisdiction. Accordingly, the Court appears to lack jurisdiction to adjudicate the claims
in the Notice. Plaintiff must file a response within thirty (30) days of entry of this ruling showing
cause, if any, why the Notice should not be dismissed for lack of jurisdiction. If Plaintiff intended
to give notice of his claims to state officials and/or file a case in state court, rather than initiating
this federal case, he does not need to respond to this Order. The failure to timely respond and
establish a basis for federal jurisdiction may result in dismissal of this case, but such dismissal will
be without prejudice to refiling the NMTCA claims in state court.
IT IS ORDERED that within thirty (30) days of entry of this Order, Plaintiff shall show
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cause, if any, why the Notice should not be dismissed without prejudice for lack of jurisdiction.
SO ORDERED.
________/S/____________________________
KEA W. RIGGS
UNITED STATES DISTRICT JUDGE
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