Robertson v. Robertson

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BELINDA ROBERTSON,
Plaintiff,
v. No. 2:26-cv-00676-KG-KRS
CALE ROBERTSON,
Defendant.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
AND ORDER OF REMAND
THIS MATTER comes before the Court on pro se Plaintiff’s Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983, Doc. 1, filed March 5, 2026 (“Complaint”), Plaintiff’s Notice of
Removal, Doc. 4, filed March 5, 2026, and Plaintiff’s Amended Complain Show Cause Regarding
Complain and Order Show Cause why the Court should not dismiss Pursuant to 42 U.S.C. Section
1983 [sic], Doc. 8, filed March 24, 2026 (“Amended Complaint”).
Order of Dismissal
Plaintiff filed her Complaint using the form “Civil Rights Complaint Pursuant to
42 U.S.C. § 1983.” Plaintiff asserts claims for violations of her First and Fourteenth Amendment
rights pursuant to 42 U.S.C. § 1983 and claims pursuant to state law. See Complaint at 2-3.
Plaintiff Belinda Robertson is also the plaintiff in a state-court case that she filed against her
husband Defendant Cale Robertson. See Complaint at 4. Plaintiff removed the state-court case to
this Court. See Notice of Removal.
United States Magistrate Judge Kevin R. Sweazea notified Plaintiff:
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.,
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814 F.3d 1151, 1155 (10th Cir. 2016). There are no allegations showing that
Defendant Cale Robertson was acting under color of state law. The Complaint
contains conclusory allegations that Defendant violated Plaintiff’s civil rights but
does not clearly explain which rights Plaintiff believes Defendant violated. See
Complaint at 2-3.
Order to Show Cause at 2-3, Doc. 6, filed March 9, 2026. Judge Sweazea ordered Plaintiff to show
cause why the Court should not dismiss her claims pursuant to 42 U.S.C. § 1983 and to file an
amended complaint. See Order to Show Cause at 6.
Plaintiff timely filed her Amended Complaint. The Amended Complaint makes vague,
conclusory allegations that Defendant conspired with state officials. See Amended Complaint at 1
(“conspiracy”), at 2 (“Planned in Conspiracy with Attorneys in Record of case and People in
case”), at 9 (“Conspiracy that cause violation of the rights under U.S.C & 1983” [sic]), at 13 (“with
conspiracy”), at 17 (“with complicity of Defendant Cale Robertson”). Plaintiff also alleges that
Defendant was “acting under color of the state” because Defendant “was approved [for] training
in the New Mexico State Police” and “completed all steps necessaries to be accepted to New
Mexico State Police Enforcement Academy this year 2025” [sic]. Amended Complaint at 9.
Plaintiff has not shown that Defendant was acting under color of state law. While
“allegations of a conspiracy may form the basis of a § 1983 claim, we have also held a plaintiff
must allege specific facts showing an agreement and concerted action amongst the defendants
because conclusory allegations of conspiracy are insufficient to state a valid § 1983 claim.” Brooks
v. Gaenzle, 614 F.3d 1213, 1227-28 (10th Cir. 2010). Plaintiff has not alleged specific facts
showing that Defendant and state officials agreed to deprive Plaintiff of her constitutional rights
and acted in concert to advance that goal. See Bledsoe v. Carreno, 53 F.4th 589, 609 (10th Cir.
2022) (To state a Section 1983 conspiracy claim, a plaintiff has to allege “specific facts showing
an agreement [upon a common, unconstitutional goal], and concerted action [taken to advance that
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goal”] among defendants”). Plaintiff also has not alleged any facts showing that Defendant’s
actions giving rise to this case occurred in his capacity as a New Mexico State Police Officer; the
Amended Complaint alleges he was approved for training and accepted to the New Mexio State
Police Academy but does not allege he was certified as a New Mexico State Police Officer.
The Court dismisses Plaintiff’s civil rights claims pursuant to 42 U.S.C. § 1983 for failure
to state a claim because Plaintiff has not stated allegations showing that Defendant was acting
under color of state law. The Court, having dismissed Plaintiff’s federal law claims, declines to
exercise supplemental jurisdiction over Plaintiff’s state law claims and dismisses the Amended
Complaint. 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”).
Order of Remand
Plaintiff filed a Notice removing Case No. “D-307-DV-2021-00043” from the Third
Judicial District Court, Dona Ana County, State of New Mexico. The Notice of Removal and state-
court records indicate that Plaintiff in this case, Belinda Roberts, is the plaintiff in the state case.
See Complaint at 9, 11, 22; Petition for Order of Protection from Domestic Abuse, filed January 26,
2021, in Belinda Robertson v. Cale Robertson, No. D-307-DV-2021-00043, Third Judicial District
Court, County of Dona Ana, State of New Mexico.
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The removal statute provides that a defendant may remove a case to federal court. See
28 U.S.C. § 1441(a) (“any civil action brought in a State court ... may be removed by the defendant
or the defendants”).
[P]laintiffs are not entitled to remove cases to federal court. See Hamilton v. Aetna
Life & Cas. Co., 5 F.3d 642, 643 (2d Cir. 1993) (per curiam) (“No section [of the
United States Code] provides for removal by a plaintiff.”); see also 14C Charles
Alan Wright, et al., Federal Practice and Procedure § 3730 (Rev. 4th. ed. 2018)
(stating that “plaintiffs cannot remove” cases to federal court).
Robinson v. New Mexico, Order and Judgment at 2, No. 18-2179 (10th Cir. June 28, 2019); Conner
v. Salzinger, 457 F.2d 1241, 1243 (3d Cir. 1972) (“It is settled that the cited removal statutes
confine the right of removal from a state court to a federal district court to a defendant or
defendants”) (emphasis in original).
Judge Sweazea ordered Plaintiff to show cause why the Court should not remand Robertson
v. Robertson, No. D-307-DV-2021-00043, to the Third Judicial District Court, County of Dona
Ana, State of New Mexico. See Order to Show Cause at 6 (notifying Plaintiff that failure to timely
show cause may result in remand of the removed case to state court). Plaintiff indicates she did
not receive fair treatment in the state-court case but has not cited any legal authority allowing a
plaintiff to remove a case from state court to federal court. See Amended Complaint at 6, 12. The
Court, therefore, remands Robertson v. Robertson, No. D-307-DV-2021-00043, to the Third
Judicial District Court, County of Dona Ana, State of New Mexico.
Conclusion
The Court, having dismissed Plaintiff’s Amended Complaint and having remanded
Robertson v. Robertson, No. D-307-DV-2021-00043 to the Third Judicial District Court, County
of Dona Ana, State of New Mexico, dismisses this case without prejudice.
IT IS ORDERED that:
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(i) Plaintiff’s Amended Complain Show Cause Regarding Complain and Order Show
Cause why the Court should not dismiss Pursuant to 42 U.S.C. Section 1983 [sic],
Doc. 8, filed March 24, 2026, is DISMISSED without prejudice.
(ii) Robertson v. Robertson, No. D-307-DV-2021-00043, is REMANDED to the Third
Judicial District Court, County of Dona Ana, State of New Mexico.
(iii) This case is DISMISSED without prejudice.
/s/Kenneth J. Gonzales___________________
CHIEF UNITED STATES DISTRICT JUDGE
• Please note that this document has been
electronically filed. To verify its
authenticity, please refer to the Digital File
Stamp on the NEF (Notice of Electronic
Filing) accompanying this document.
Electronically filed documents can be found
on the Court’s PACER public access system.
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