King v. New Mexico Regulation and Licensing Department et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ELIZABETH KING,
Plaintiff,
v. 	No. 1:26-cv-01669-LF
NEW MEXICO REGULATION AND
LICENSING DEPARTMENT,
CLAY BAILEY,
JUAN TORRES and
LESLIE GARCIA,
Defendants.
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS
AND ORDER FOR AMENDED COMPLAINT
THIS MATTER comes before the Court on pro se Plaintiff’s Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983, Doc. 1, filed May 22, 2026 (“Complaint”), and Plaintiff’s
Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 2, filed May 22,
2026 (“Application”).
Order Granting 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[.]
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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 and her spouse’s combined
average monthly income amount during the past 12 months is $3,010.00; (ii) Plaintiff and her
spouse’s monthly expenses total $2,878.00; and (iii) Plaintiff and her spouse have $2,106.00 in
cash and $1,053 in bank accounts. The Court finds that Plaintiff is unable to pay the costs of this
proceeding because she signed an affidavit stating she is unable to pay the costs of this proceeding
and her and her spouse’s combined monthly expenses are approximately equal to their monthly
income.
Order for Amended Complaint
This case arises from Plaintiff’s employment with and subsequent termination by
Defendant New Mexico Regulation and Licensing Department (“NMRLD”). See Complaint at 2.
Defendants Bailey, Torres and Garcia appear to be employees of Defendant New Mexico
Regulation and Licensing Department. See Complaint at 7. Plaintiff asserts claims for violations
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of the Family and Medical Leave Act (“FMLA”)1 and the Americans with Disabilities Act
(“ADA”)2 and for retaliation. 	See Complaint at 2. 	Plaintiff seeks monetary damages and
“expungement/clearance of disciplinary records.” Complaint at 6.
The Court has identified the following deficiencies in the Complaint and orders Plaintiff to
file an amended complaint. 	See Lowrey v. Sandoval County Children Youth and Families
Department, 2023WL4560223 *2 (10th Cir. July 17, 2023) (stating: “Given a referral for non-
dispositive pretrial matters, a magistrate judge may point out deficiencies in the complaint [and]
order a litigant to show cause”) (citing 28 U.S.C. § 636(b)(1)(A) and Fed. R. Civ. P. 72(a)).
First, it appears the Court lacks jurisdiction over Plaintiff’s claims for monetary damages
against NMRLD and against the NMRLD employees in their official capacities due to Eleventh
Amendment sovereign immunity. “Generally, states and their agencies are protected from suit by
sovereign immunity, as guaranteed by the Eleventh Amendment.” Levy v. Kansas Dept. of Social
and Rehabilitation Services, 789 F.3d 1164, 1169 (10th Cir. 2015). “However, there are three
exceptions to the Eleventh Amendment’s guarantee of sovereign immunity to states”:
1 To state an interference or entitlement claim under the FMLA, a plaintiff must allege: “(1) that
he [or she] was entitled to FMLA leave, (2) that some adverse action by the employer interfered
with his [or her] right to take FMLA leave, and (3) that the employer's action was related to the
exercise or attempted exercise of his FMLA rights.” 	Metzler v. Federal Home Loan Bank of
Topeka, 464 F.3d 1164, 1171 (10th Cir. 2006). To state a retaliation claim, a plaintiff “must show
that: (1) she engaged in a protected activity; (2) [defendant] took an action that a reasonable
employee would have found materially adverse; and (3) there exists a causal connection between
the protected activity and the adverse action.” Metzler v. Federal Home Loan Bank of Topeka, 464
F.3d at 1179.
2 To state a claim of discrimination under the ADA, a plaintiff must allege: “(1) she is disabled
within the meaning of the ADA, (2) she is qualified to perform the essential functions of the job
with or without accommodation, and (3) she suffered an adverse employment action because of
his or her disability.” See Edmonds-Radford v. Southwest Airlines Co., 17 F.4th 975, 989-990 (10th
Cir. 2021). To state a claim of retaliation under the ADA, a plaintiff must allege: “(1) she was
engaged in a protected activity, (2) she was subjected to an adverse employment action, and (3) a
causal connection between the protected activity and the adverse action.” See Edmonds-Radford
v. Southwest Airlines Co., 17 F.4th 975, 994 (10th Cir. 2021).
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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.
Id. (citing Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (internal
citations omitted and altered)). The immunity extends to arms of the state and to state officials
who are sued for damages in their official capacity. Peterson v. Martinez, 707 F.3d 1197, 1205
(10th Cir. 2013).
As the party seeking to invoke the jurisdiction of this Court, Plaintiff bears the burden of
alleging facts that support jurisdiction. 	See Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir.
2013) (“Since federal courts are courts of limited jurisdiction, we presume no jurisdiction exists
absent an adequate showing by the party invoking federal jurisdiction”); Evitt v. Durland, 243 F.3d
388 *2 (10th Cir. 2000) (“even if the parties do not raise the question themselves, it is our duty to
address the apparent lack of jurisdiction sua sponte”) (quoting Tuck v. United Servs. Auto. Ass'n,
859 F.2d 842, 843 (10th Cir. 1988).
In this case, there are no allegations showing that any of the three exceptions to the
Eleventh Amendment’s guarantee of sovereign immunity to states apply to Plaintiff’s claims
against NMRLD and against the NMRLD employees in their official capacities. See Davison v.
Grant Thornton LLP, 582 Fed.Appx. 773, 775 (10th Cir. 2014) (“The complaint must identify the
statutory or constitutional provision under which the claim arises, and allege sufficient facts to
show that the case is one arising under federal law.”) (quoting Martinez v. U.S. Olympic Committee,
802 F.2d 1275, 1280 (10th Cir. 1986)). Plaintiff has not cited any authority showing that the State
of New Mexico consented to suit in federal court for monetary damages or that Congress abrogated
State’s sovereign immunity to suits for monetary damages.
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Second, the Complaint generally fails to state plausible claims due to the vague and
conclusory nature of the factual allegations. 	Many of the allegations in the Complaint refer to
“Defendants” collectively and do not clearly explain what each Defendant did to Plaintiff. 	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 [each] defendant did it; how [each] defendant’s action harmed him or her;
and, what specific legal right the plaintiff believes [each] defendant violated.”) (emphasis added).
The Court orders Plaintiff to 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 or defenses in numbered paragraphs”).
Service on Defendants
Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915 which 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 address service after
Plaintiff files an amended complaint.
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.
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Failure to comply with Court Orders and the Federal and Local Rules of Civil Procedure
interferes with the judicial process and may result in monetary and non-monetary sanctions
including filing restrictions and dismissal of this case. See Fed. R. Civ. P. 41(b) (“If the plaintiff
fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss
the action”); Gustafson v. Luke, 696 Fed.Appx. 352, 354 (10th Cir. 2017) (“Although the language
of Rule 41(b) requires that the defendant file a motion to dismiss, the Rule has long been
interpreted to permit courts to dismiss actions sua sponte for a plaintiff's failure to prosecute or
comply with the rules of civil procedure or court's orders.”) (quoting Olsen v. Mapes, 333 F.3d
1199, 1204 n.3 (10th Cir. 2003)).
Compliance with Rule 11
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
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(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 May 22, 2026, is GRANTED.
(ii) 	Plaintiff shall, within 21 days of entry of this Order, file an amended complaint.
Failure to timely file an amended complaint may result in dismissal of this case.
_____________________________________
Laura Fashing
United States Magistrate Judge
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