Boyd v. Planet Fitness et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
NORETTA F. BOYD,
Plaintiff,
v. 	No. 1:25-cv-00422-SCY
PLANET FITNESS, NEW MEXICO SPORTS
AND WELLNESS (HIGHPOINT), KELLY
EDUCATION, ALBUQUERQUE PUBLIC
SCHOOLS and GREYSTAR PROPERTY
MANAGEMENT,
Defendants.
ORDER FOR SECOND AMENDED COMPLAINT
Plaintiff, who is proceeding pro se, asserted civil rights, discrimination and state-law
claims alleging:
This case, as related to prior litigation [in the United States District Court for the
Southern District of Louisiana] has and is being intentionally inflicted upon her,
with malice, and coerced by means of exercises aligned with entrapping her into
not limited to, company, community, government platforms, agendas and
initiatives, by means of intimidation, coercion and harassment as well as forcer
her to stay in the demographic, while being overtly and covertly assaulted and
exploited for the gain of the defendants.
Civil Rights Complaint, Human Rights Complaint, Title VII Discrimination Complaint, Tort
Claims Act [and] Continued Wrong Doctrine at 3-4, Doc. 1, filed May 5, 2025 (“Complaint”).
For each of her eight claims, Plaintiff stated:
Plaintiff believes these acts are in association with retaliation for plaintiff’s
previous case filing in the United States District Court Southern District of
Indiana Indianapolis Division. Plaintiff believes the intention of the engaged
former and new defendants are to further inflict public defamatory and retaliatory
harm upon plaintiff’s person as evidenced and poses threats inclusive of a
potential of imminent danger.
Complaint at 5-9. Plaintiff did not describe the acts giving rise to her claims.
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The Court notified Plaintiff:
The Complaint should be dismissed for failure to state a claim because there are
no factual allegations describing what each Defendant did to Plaintiff, when each
Defendant did it, how each Defendant’s actions harmed and what specific legal
rights 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.”). Plaintiff states she “believes [Defendants’] acts are in
association with retaliation for plaintiffs’ previous case filing in the United States
District Court Southern District of Indiana Indianapolis Division.” Complaint at
5-8. Plaintiff’s belief that Defendants’ acts are retaliatory, without supporting
factual allegations, is not sufficient to state a plausible claim.
We use the Iqbal/Twombly standard to determine whether Plaintiffs
have stated a plausible claim. Brown v. Montoya, 662 F.3d 1152,
1162–63 (10th Cir. 2011). In applying this standard, we take
Plaintiffs’ well-pleaded facts as true, view them in the light most
favorable to Plaintiffs, and draw all reasonable inferences from the
facts in favor of Plaintiffs. Id. at 1162. A plausible claim includes
facts from which we may reasonably infer Defendant's liability. Id.
at 1163. Plaintiffs must nudge the claim across the line from
conceivable or speculative to plausible. Id. Allegations that are
“‘merely consistent with’ a defendant's liability” stop short of that
line. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Labels,
conclusions, formulaic recitations of elements, and naked
assertions will not suffice. Id. An allegation is conclusory where it
states an inference without stating underlying facts or is devoid of
any factual enhancement. Kellum v. Mares, 657 Fed. App'x 763,
770 (10th Cir. 2016) (unpublished) (citing Black's Law Dictionary
(10th ed. 2014)). Conclusory allegations are “not entitled to the
assumption of truth.” Khalik v. United Air Lines, 671 F.3d 1188,
1193 (10th Cir. 2012). In fact, we disregard conclusory statements
and look to the remaining factual allegations to see whether
Plaintiffs have stated a plausible claim. Waller v. City & Cnty. of
Denver, 932 F.3d 1277, 1282 (10th Cir. 2019). We must draw on
our experience and common sense in evaluating the plausibility of
a claim. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021) (footnote
omitted).
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Order to Show Cause at 4-5, Doc. 8, filed May 6, 2025. The Court ordered Plaintiff to show
cause why the Court should not dismiss this case for failure to state a claim and to file an
amended complaint and ordered that “The amended complaint must describe what each
Defendant did to Plaintiff, when each Defendant did it and what specific legal right Plaintiff
believes each Defendant violated.” Order to Show Cause at 5.
Plaintiff filed a 60-page Amended Complaint asserting eight claims pursuant to federal
law and pursuant to the state law of Indiana and New Mexico. See Amended Complaint at 2,
Doc. 10, filed May 24, 2025. Those claims include:
(a) 	Claim I: Conspirator Intentional Tort Interference with an Economic Advantage
Inclusive of the Continued Wrong Doctrines and Retaliation. Amended Complaint
at 4.1
(b) 	Claim II: Invasion of Privacy (1) Intrusion Upon Seclusion and (2) False Light (3)
Public Disclosure and Staged Acts for Continued Harassment (4) Appropriation
Inclusive of the Continued Wrong Doctrines and Retaliation. Amended Complaint
at 27.2
1
To establish a claim of intentional interference with contractual relations, a party
must prove five elements: (1) the defendant had “knowledge of the contract
between [the plaintiff] and the corporation[;] (2) performance of the contract was
refused[;] (3) [the defendant] played an active and substantial part in causing [the
plaintiff] to lose the benefits of his [or her] contract[;] (4) damages flowed from
the breached contract[;] and (5) [the defendant] induced the breach without
justification or privilege to do so.”
Fogelson v. Wallace, 2017-NMCA-089, ¶ 62.
2
New Mexico recognizes the tort of invasion of privacy, which is broken down into
four categories: “false light, intrusion, publication of private facts, and
appropriation.” Andrews, 1995-NMCA-015, ¶ 58. “False light invasion of privacy
is a close cousin of defamation.” Id. ¶ 59 (internal quotation marks and citation
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(c) 	Claim III: Retaliation for Filing a Title VII and Retaliatory Discharge Claim as
associated with plaintiff’s FCA Claim previous filing and as protected under
Public Policy, resulting in public pursuits of demographic platform interest
inclusive of the Continued Wrong Doctrines and Retaliation. Amended Complaint
at 39.3
(d) 	Claim IV: Employment Discrimination and Disparate Treatment in violation of
Title VII of the Civil Rights Movement and Retaliation in Violation of Public
Policy inclusive of the Continued Wrong Doctrines. Amended Complaint at 45.4
omitted); see Zeran v. Diamond Broad., Inc., 203 F.3d 714, 719 (10th Cir. 2000)
(distinguishing defamation from false light invasion of privacy by noting that in a
defamation action recovery is sought primarily for injury to one’s reputation while
in a false light action it is the injury to the person's own feelings). A false light
plaintiff is required to prove three things: (1) that the plaintiff was portrayed in a
false light, i.e., “the matter published concerning the plaintiff is not true[,]”
Restatement (Second) of Torts § 652E cmt. a; (2) that the false portrayal would be
highly offensive to a reasonable person such that the plaintiff would be “justified
in the eyes of the community in feeling seriously offended and aggrieved by the
publicity[,]” Restatement (Second) of Torts § 652E cmt. c; and (3) that the
publisher “had knowledge of or acted in reckless disregard as to the falsity of the
publicized matter and the false light in which the other would be placed.”
Restatement (Second) of Torts § 652E(b).
Young v. Wilham, 2017-NMCA-087, ¶ 57.
3 See McNellis v. Douglas County School District, 116 F.4th 1122, 1139, 1142 (10th Cir. 2024)
(“a plaintiff asserting a Title VII retaliation claim must plausibly allege (1) that she engaged in
protected opposition to discrimination, (2) that a reasonable employee would have found the
challenged action materially adverse, and (3) that a causal connection existed between the
protected activity and the materially adverse action”).
4 See McNellis v. Douglas County Sch. Dist., 116 F.4th 1122, 1139 (10th Cir. 2024) (“a Title VII
plaintiff bringing a claim of employment discrimination must plausibly allege these elements: (1)
she is a member of a protected class, (2) she suffered an adverse employment action, and (3) the
challenged action occurred under circumstances giving rise to an inference of discrimination”).
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(e) 	Claim V: Blacklisting and Collusion inclusive of the Continued Wrong Doctrines
and Retaliation. Amended Complaint at 47.5
(f) 	Claim VI: Title VII, False Claims and Whistleblower Protection Acts. Employer
Stalking, Harassment, Overt and Cover Assaults inclusive of the Continued
Wrong Doctrines and Retaliation. Amended Complaint at 48.
(g) 	Claim VII: Violations of Plaintiff’s Basic Human Rights as related to claims
Represented herein and inclusive of the Continued Wrong Doctrines and
Retaliation. Amended Complaint at 50.6
(h) 	Claim VIII: Intentional Infliction of Emotional Distress inclusive of the
Continued Wrong Doctrines and Retaliation. Amended Complaint at 51.7
5 To state a claim for civil conspiracy, Plaintiff must allege: “(1) that a conspiracy between two or
more individuals existed[,] (2) that specific wrongful acts were carried out by [Defendants]
pursuant to the conspiracy[,] and (3) that [Plaintiff was] damaged as a result of such acts.” Cain
v. Champion Window Co. of Albuquerque, LLC, 2007-NMCA-085, ¶ 28; Santa Fe Technologies,
Inc. v. Argus Networks, Inc., 2002-NMCA-030, ¶ 43 ("Civil conspiracy is an agreement to
accomplish an unlawful purpose or a lawful purpose by unlawful means").
6 See Chen v. Ashcroft, 85 F. App’x 700, 705 (10th Cir. 2004) (“the Universal Declaration of
Human Rights is merely a resolution of the United Nations, and the American Declaration of the
Rights and Duties of Man and American Declaration of Human Rights are simply multinational
declarations; none is binding on the United States or on this court”).
7 The elements of an intentional infliction of emotional distress (“IIED”) claim are:
(1) the conduct in question was extreme and outrageous; (2) the conduct of the
defendant was intentional or in reckless disregard of the plaintiff; (3) the
plaintiff's mental distress was extreme and severe; and (4) there is a causal
connection between the defendant's conduct and the claimant's mental distress.
Baldonado v. El Paso Natural Gas Co., 2008-NMCA-010, ¶ 23 (quoting Trujillo v. N. Rio Arriba
Elec. Coop., Inc., 2002-NMSC-004, ¶ 25 (“The Restatement describes extreme and outrageous
conduct as that which is ‘so outrageous in character, and so extreme in degree, as to go beyond
all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a
civilized community.’”) (quoting Restatement (Second) of Torts § 46 cmt. D)); and id. (“Severe
emotional distress means that ‘a reasonable person, normally constituted, would be unable to
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The Amended Complaint, for the reasons that follow, does not give Defendants fair
notice of which claims Plaintiff is asserting against each Defendant and the grounds upon which
each claim rests. “Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain
statement of the claim showing that the pleader is entitled to relief, in order to give the defendant
fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (stating “a plaintiff’s obligation to provide the ‘grounds’ of
his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do”).
First, the Amended Complaint is 60 pages. See Lowrey v. Sandoval County
Children Youth & Families Dep’t, No. 23-2035, 2023 WL 4560223 *2 (10th Cir. July 17, 2023)
(“The sheer length of the [98-page] complaint makes it difficult to determine precisely what
material facts support the various claims made”); United States v. Celio, 388 F. App’x 758, 761
(10th Cir. 2010) (“[T]his court has long recognized that defendants are prejudiced by having to
respond to pleadings that are wordy and unwieldy, and district judges have their task made
immeasurably more difficult by pleadings that are rambling.”) (internal alterations omitted)
(quoting Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1162-63 (10th Cir. 2007)).
“Courts have ‘obligations to pro se litigants’ to provide ‘some modest additional explanation’
regarding the format of filings because they ‘are not expected to understand what recitations are
legally essential and which are superfluous.’” Id.
Second, many of Plaintiff’s allegations are vague and do not identify which, if any, of the
Defendants committed the acts she alleges occurred. For example, Plaintiff alleges:
cope adequately with the mental distress engendered by the circumstances.’”) (quoting Jaynes v.
Strong-Thorne Mortuary, Inc., 1998-NMSC-004, ¶ 20)).
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Throughout Plaintiff’s time in Albuquerque, Plaintiff[’s] person has been overtly
and covertly stalked, harassed, biometrically and reputationally maligned, while
perpetrating defendants, new and as aligned with the former defendants and
causes of actions retaliatorily, duplicated in such an egregious way, as to exploit
the engagement of her person for business and what appears to be personal career
and corporate gains or government subsidized benefits in a manner resembling an
effort of business perks and legislative racketeering.
Amended Complaint at 47, ¶ 5; see also id. at 39-40, ¶¶ 1-3; id. at 47, ¶¶ 1-4; id. at 52-52, ¶¶ 3-6;
id. at 54, ¶¶ 8-11. The Amended Complaint also does not clearly indicate which of the eight
claims are asserted against each Defendant.
Third, several of the paragraphs are not numbered. See, e.g., id. at 25 (four unnumbered
paragraphs). Other paragraphs are designated with non-unique numbers, for example, there are
10 paragraphs labeled “1.” The Amended Complaint repeats several allegations. See id. at 5, ¶ 2;
id. at 27, ¶ 2; id. at 39, ¶ 2; id. at 45, ¶ 2; id. at 47, ¶ 2; id. at 51, ¶ 2; id. at 51-52, ¶ 2.
The Court orders Plaintiff to file a second amended complaint and provides the following
explanations regarding the format of the amended complaint.
The second amended 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, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th Cir. 2007). It is helpful if
a complaint includes a section for each defendant that sets forth the factual allegations regarding
that defendant. The second amended complaint must clearly identify which claims Plaintiff is
asserting against each Defendant. The second amended complaint does not need to repeat factual
allegations in each claim; the second amended complaint may incorporate previous factual
allegations by reference.
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The second amended complaint must set forth Plaintiff’s allegations in uniquely
numbered paragraphs. See Fed. R. Civ. P. 10(b) (“A party must state its claims or defenses in
numbered paragraphs”). Rule 8 of the Federal Rules of Civil Procedure requires that Defendants
“must admit or deny the allegations asserted against” them by Plaintiff. Fed. R. Civ. P.
8(b)(1)(B). Uniquely numbered paragraphs facilitate the identification of which paragraphs
Defendants admit and which paragraphs they deny.
IT IS ORDERED that Plaintiff shall, within 21 days of entry of this Order, file a second
amended complaint. Failure to timely file an amended complaint that complies with the guidance
in this Order may result in dismissal of this case. The second amended complaint must comply
with the Federal and Local Rules of Civil Procedure.
_____________________________________
UNITED STATES MAGISTRATE JUDGE
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