Robertson v. State of New Mexico

Filing 6

ORDER by Magistrate Judge Kevin R. Sweazea GRANTING 2 MOTION to Proceed under 28 U.S.C. 1915, filed by Belinda Robertson, AND ORDER re 1 Complaint filed by Belinda Robertson, TO SHOW CAUSE. Show Cause Response due by March 31, 2025. (ldm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BELINDA ROBERTSON,
Plaintiff,
v.

No. 2:25-cv-00077-KRS

STATE OF NEW MEXICO
Defendant.
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS
AND ORDER TO SHOW CAUSE
THIS MATTER comes before the Court on pro se Plaintiff’s Complaint, Doc. 1, filed
January 27, 2025, and Plaintiff’s Application to Proceed in District Court Without Prepaying Fees
or Costs, Doc. 2, filed January 27, 2025.
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 District Court Without Prepaying
Fees or Costs. Plaintiff signed an affidavit stating she is unable to pay the costs of these
proceedings and provided the following information: (i) Plaintiff’s average monthly income during
the past 12 months is $0.00; (ii) Plaintiff has $0.00 in bank accounts; and (iii) Plaintiff does not
have access to funds controlled by her spouse. The Court finds that Plaintiff is unable to pay the
costs of this proceeding because Plaintiff signed an affidavit stating she is unable to pay the costs
of these proceedings and because Plaintiff has no income and no access to her spouse’s funds.
Order to Show Cause
A.

Standard of Review
1.

Rule 8

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that complaints contain “a
short and plain statement of the claim showing that the pleader is entitled to relief,” while Rule
8(d)(1) states that allegations in pleadings “must be simple, concise, and direct.” Fed. R. Civ. P. 8.
Pursuant to these provisions, a complaint must “explain what each defendant did to [the plaintiff];
when the defendant did it; how the defendant’s action harmed [the plaintiff]; and, what specific
legal right the plaintiff believes the defendant violated. The purpose of these requirements is to
provide notice to a defendant for preparing a defense and sufficient clarity for the court to
adjudicate the merits ” Lowrey v. Sandoval Cnty. Children Youth & Families. Dep't, No. 23-2035,
2023 WL 4560223, at *2 (10th Cir. July 17, 2023); see also Embree v. Wyndham Worldwide Corp.,
779 F. App’x 658, 662 (11th Cir. 2019) (stating that a complaint violates Rule 8 where it

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“(1) contains multiple counts where each count adopts the allegations of all preceding counts; (2) is
replete with conclusory, vague, and immaterial facts not obviously connected to any particular
cause of action; (3) fails to separate into a different count each cause of action; or (4) asserts
multiple claims against multiple defendants without specifying which defendant is responsible for
which act”). While a pro se complaint is construed liberally, “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.” Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994); see
also Lowrey, 2023 WL 4560223, at *2; Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). A
magistrate judge to whom a case has been referred for non-dispositive pretrial matters “may point
out deficiencies in the complaint, order a litigant to show cause, and, if necessary, dismiss a
complaint for failure to comply with the show cause order.” Lowrey, 2023 WL 4560223, at *2.
2.

Section 1915

Where a party is authorized to proceed in forma pauperis under 28 U.S.C. § 1915, the court
must screen the complaint and dismiss it if the court concludes that “the action or appeal ... (i) is
frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks
monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
The court “appl[ies] the same standard of review for dismissals under § 1915(e)(2)(B)(ii) that [it]
employ[s] for [Rule 12(b)(6)] motions to dismiss for failure to state a claim.” Lopez v. Compa
Indus., Inc., No. 24-2041, 2024 WL 3518015, at *2 (10th Cir. July 24, 2024) (quoting Kay v. Bemis,
500 F.3d 1214, 1217 (10th Cir. 2007)).
“[T]o withstand a Rule 12(b)(6) motion to dismiss, a complaint must contain enough
allegations of fact ... ‘to state a claim to relief that is plausible on its face.’” Rutila v. Buttigieg, No.
23-6157, 2024 WL 5153942, at *2 (10th Cir. Dec. 18, 2024) (quoting Khalik v. United Air Lines,

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671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007))). In determining whether this standard has been met, the court “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.” Lopez, 2024 WL 3518015, at *2
(quoting Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002)). “A claim is facially plausible
‘when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.’” Id. (quoting Brokers’ Choice of Am., Inc.
v. NBC Universal, Inc., 861 F.3d 1081, 1104 (10th Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009))). “In assessing plausibility, [the court] need not accept conclusory allegations
unsupported by facts.” Id.; see also Rutila, 2024 WL 5153942, at *2 (“we disregard conclusory
statements … in which an inference is asserted without stating underlying facts or including any
factual enhancement” (internal quotation marks and citations omitted).
“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 [s]he has alleged and it would be futile to give
[the plaintiff] an opportunity to amend.” Lopez, 2024 WL 3518015, at 2 (quoting Curley v. Perry,
246 F.3d 1278, 1281 (10th Cir. 2001) (quoting Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 806
(10th Cir. 1999)))).
B.

Application To The Complaint

As an initial matter, Plaintiff’s pro se complaint constitutes an “impermissible shotgun
pleading.” Embree v. Wyndham Worldwide Corp., 779 F. App’x 658, 662 (11th Cir. 2019). As
courts have explained, “to comply with federal pleading standards, a complaint ‘must contain ... a
short and plain statement of the claim showing that the pleader is entitled to relief.’ FED. R. CIV.
P. 8(a)(2). The Federal Rules also require plaintiffs to ‘state [their] claims ... in numbered

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paragraphs, each limited as far as practicable to a single set of circumstances.’ FED. R. CIV. P.
10(b).” Hernandez v. Echarte, No. 24-CV-20766, 2024 WL 1209802, at *4–5 (S.D. Fla. Mar. 20,
2024). “A ‘shotgun pleading’ is one that lacks the minimum clarity, brevity, or coherence required
by Rules 8 and 10 of the Federal Rules of Civil Procedure.’” Id. (quoting Lozano v. Prummell,
2022 WL 4384176, at *2 (M.D. Fla. Sept. 22, 2022) (Steele, J.)). “All shotgun pleadings share two
characteristics. One, they fail to one degree or another, and in one way or another, to give the
defendants adequate notice of the claims against them and the grounds upon which each claim
rests. Two, they waste scarce judicial resources, inexorably broaden the scope of discovery, wreak
havoc on appellate court dockets, and undermine the public’s respect for the courts.” Id. (internal
quotation marks and citations omitted).
Plaintiff’s complaint is more than twelve pages of single-spaced text, contains mostly
unnumbered paragraphs and completely lacks the minimum clarity, brevity, or coherence required
by Rules 8 and 10 of the Federal Rules of Civil Procedure. See Williamson v. Owners Resort &
Exch., 90 F. App’x 342, 344 (10th Cir. 2004) (dismissal of pro se complaint warranted where it is
“confusing and incomprehensible because of its lack of complete sentences, lucidity, or
specificity”; plaintiff “asserted violations of numerous federal statutes and constitutional
provisions, but still failed to allege with any clarity what conduct by which defendants violated
which federal statutes”); Whitehead v. Shafer, 295 F. App’x 906, 908 (10th Cir. 2008) (“a district
court may dismiss a pro se complaint when, even liberally construed, it is incomprehensible”
(internal quotation marks and citation omitted)); Moll v. Carter, 179 F.R.D. 609, 610 (D. Kan.
1998) (“A complaint that is nothing more than an ambiguous, rambling narrative of charges and
conclusions against numerous persons, organizations and agencies, which fails to plainly and
concisely state the claims asserted, and fails to give the dates and places of the alleged events of

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which plaintiff complains, falls short of the liberal and minimal standards set out in Rule 8(a).”
(internal quotation marks and citation omitted)).
In addition to the above, Plaintiff has brought his claims to court in a way that renders them
legally frivolous. The Complaint alleges that state-court judges violated Plaintiff’s rights pursuant
to the United States Constitution during proceedings in state court. Plaintiff asserts claims against
the State of New Mexico based on the alleged constitutional violations by the state-court judges
pursuant to the New Mexico Civil Rights Act, N.M.S.A. § 41-4A-9 et seq. See Complaint at 1.
These claims as asserted are legally frivolous because, among other things, they are against persons
(including judges) who enjoy absolute immunity from suits for damages. See Stump v. Sparkman,
435 U.S. 349 (1978) (judges); see also Buckley v. Fitzsimmons, 509 U.S. 259 (1993) (prosecutors
for acts associated with judicial process). In addition, Plaintiff lumps all of the defendants together
in a vast purported conspiracy, and it appears Plaintiff may be inappropriately attempting to enjoin
pending and not-yet-filed state criminal prosecutions. See Younger v. Harris, 401 U.S. 37 (1971).
More generally, Plaintiff’s “sprawling attempt to indict essentially the entirety of government,
including local and state government, as well as the state … judicial branch[], is legally frivolous.
The lawsuit cannot appropriately be maintained, and requiring the defendants to respond to it
would unfairly tax their resources, as well as those of the Court.” Garner v. City of Chicago, No.
22 C 3185, 2022 WL 19404934, at *2 (N.D. Ill. Aug. 8, 2022); see also Gordon v. Maine, No. 08100-B-S, 2008 WL 2433196, at *1–2 (D. Me. June 13, 2008) (court dismisses pro se complaint
because suit against the State of Maine, one of its courts, and the office of one of its district
attorneys is barred by the Eleventh Amendment; where the defendant judge and assistant attorney
general were also immune from suit; and where, even if the named defendants were not immune
from suit, th[e] complaint … [could] only be construed as frivolous” because it “presents a legal

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theory, that theory is indisputably meritless. (citing, e.g. Harmon v. Bullock, 21 Fed. Appx. 9, 10
(1st Cir. 2001) (per curiam) (upholding trial court conclusion that complaint was frivolous even if
allegation that criminal charge against plaintiff was unfounded were true, because state court
defendant immune from liability; allegation that state court’s rulings called its impartiality into
question, requiring recusal, frivolous on its face); Slotnick v. Staviskey, 560 F.2d 31, 32–33 (1st
Cir. 1977) (claim of conspiracy under § 1983 against state court judge, attorney for plaintiff in
state court case, and others properly dismissed where complaint contained only conclusory
allegations unsupported by references to material facts).
Generally, states and their agencies are protected from suit by sovereign immunity, as
guaranteed by the Eleventh Amendment. “The ultimate guarantee of the Eleventh Amendment is
that nonconsenting States may not be sued by private individuals in federal court.” Bd. of Trs. of
Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001). However, there
are three exceptions to the Eleventh Amendment's guarantee of sovereign immunity to states:
First, a state may consent to suit in federal court. Second, Congress
may abrogate a state’s sovereign immunity by appropriate
legislation when it acts under Section 5 of the Fourteenth
Amendment. Finally, under Ex parte Young, 209 U.S. 123, 28 S.Ct.
441, 52 L.Ed. 714 (1908), a plaintiff may bring suit against
individual state officers acting in their official capacities if the
complaint alleges an ongoing violation of federal law and the
plaintiff seeks prospective relief.
Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir.2012) (internal
citations omitted and altered).
Levy v. Kan. Dept. of Soc. and Rehabilitation Servs., 789 F.3d 1164, 1169 (10th Cir. 2015).
The Complaint fails to show that the Court has jurisdiction over Plaintiff’s claims against
the State of New Mexico because there are no factual allegations showing that any of the three
exceptions to the Eleventh Amendment’s guarantee of sovereign immunity to states apply to

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Plaintiff’s claims against the State of New Mexico. The first exception, consent to suit, does not
apply. Plaintiff asserts claims pursuant to the New Mexico Civil Rights Act which provides:
A person who claims to have suffered a deprivation of any rights, privileges or
immunities pursuant to the bill of rights of the constitution of New Mexico due to
acts or omissions of a public body or person acting on behalf of, under color of or
within the course and scope of the authority of a public body may maintain an action
to establish liability and recover actual damages and equitable or injunctive relief
in any New Mexico district court.
N.M.S.A. § 41-4A-3(B) (emphasis added), and:
The state shall not have sovereign immunity for itself or any public body within the
state for claims brought pursuant to the New Mexico Civil Rights Act, and the public
body or person acting on behalf of, under color of or within the course and scope
of the authority of the public body provided pursuant to the New Mexico Civil
Rights Act shall not assert sovereign immunity as a defense or bar to an action.
N.M.S.A. § 41-4A-9 (emphasis added). The New Mexico Civil Rights Act waives sovereign
immunity only for claims for deprivations of rights pursuant to the New Mexico Constitution
brought in state court; it does not waive sovereign immunity for claims for deprivations of rights
pursuant to the United States Constitution brought in this United States Court.
The second exception, abrogation of sovereign immunity by Congress, does not apply
because “the United States Supreme Court has previously held that Congress did not abrogate
states' Eleventh Amendment immunity when it enacted 42 U.S.C. § 1983.” Ruiz v. McDonnell,
299 F.3d 1173, 1180 (10th Cir. 2002) (citing Quern v. Jordan, 440 U.S. 332, 345 (1979)). The
third exception, bringing suit pursuant to Ex parte Young, does not apply because Plaintiff is suing
the State of New Mexico. See Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1167 (10th Cir.
2012) (for the Ex parte Young exception to state sovereign immunity to apply, a plaintiff must
show that he is: “(1) suing state officials rather than the state itself, (2) alleging an ongoing
violation of federal law, and (3) seeking prospective relief”).

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It also appears that this case may be barred by the Younger abstention and/or RookerFeldman doctrines because Plaintiff’s claims arise from proceedings in state court. The Younger
abstention doctrine "dictates that federal courts not interfere with state court proceedings ... when
such relief could adequately be sought before the state court." Rienhardt v. Kelly, 164 F.3d 1296,
1302 (10th Cir. 1999); D.L. v. Unified School Dist. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004)
(“Younger abstention is jurisdictional”) (citing Steel Co. v. Citizens for a Better Env., 523 U.S. 83,
100 n.3 (1998)). In determining whether Younger abstention is appropriate, the Court considers
whether:
(1) there is an ongoing state ... civil ... proceeding, (2) the state court provides an
adequate forum to hear the claims raised in the federal complaint, and (3) the state
proceedings involve important state interests, matters which traditionally look to
state law for their resolution or implicate separately articulated state policies.
Younger abstention is non-discretionary; it must be invoked once the three
conditions are met, absent extraordinary circumstances.
Amanatullah v. Colo. Bd. of Med. Exam’rs, 187 F.3d 1160, 1163 (10th Cir. 1999). The RookerFeldman doctrine:
bars federal district courts from hearing cases “brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district
court proceedings commenced and inviting district court review and rejection of
those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280,
284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005). Where the relief requested would
necessarily undo the state court’s judgment, Rooker-Feldman deprives the district
court of jurisdiction. Mo’s Express, 441 F.3d at 1237.
Velasquez v. Utah, 775 Fed. Appx. 420, 422 (10th Cir. 2019); Knox v. Bland, 632 F.3d 1290, 1292
(10th Cir. 2011) (‘Under [the Rooker-Feldman] doctrine, ‘a party losing in state court is barred
from seeking what in substance would be appellate review of the state judgment in a United States
district court, based on the losing party’s claim that the state judgment itself violates the loser’s
federal rights’’) (quoting Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994)).

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The Court orders Plaintiff to show cause why the Court should not dismiss this case for
failure to comply with Rule 8, because the claims are frivolous and because the Court lacks
jurisdiction over claims against the State of New Mexico. If Plaintiff asserts the Court should not
dismiss this case, Plaintiff must file an amended complaint. The amended complaint must comply
with the Federal and Local Rules of Civil Procedure. See, for example, Fed. R. Civ. P. 10(b) (“A
party must state its claims . . . in numbered paragraphs). The amended complaint must also: (i)
provide the case numbers for the proceedings in state court giving rise to Plaintiff’s claims in this
case; and (ii) indicate whether those cases are ongoing.
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 (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

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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:
(i)

Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or
Costs, Doc. 2, filed January 27, 2025, is GRANTED.

(ii)

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.

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IT IS SO ORDERED this 10th day of March, 2025.
__________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

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