Robertson v. Robertson

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BELINDA ROBERTSON,
Plaintiff,
v. 	No. 2:26-cv-00676-KRS
CALE ROBERTSON,
Defendant.
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS
ORDER TO SHOW CAUSE REGARDING COMPLAINT AND
ORDER TO SHOW CAUSE REGARDING NOTICE OF REMOVAL
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 Application
to Proceed in District Court Without Prepaying Fees or Costs, Doc. 2, filed March 5, 2026
(“Application”), and Plaintiff’s Notice of Removal, Doc. 4, filed March 5, 2026.
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[.]
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
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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 her average monthly income amount during the past 12 months is $0.00. 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 this proceeding and Plaintiff has no income.
Order to Show Cause Regarding Complaint
Plaintiff filed her Complaint using the form “Civil Rights Complaint Pursuant to
42 U.S.C. § 1983.” 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 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 has also filed a Notice of Removal
of the state-court case which the Court addresses below.
The Court has identified the following deficiency, and orders Plaintiff to show cause why
the Court should not dismiss her claims pursuant to 42 U.S.C. § 1983. 	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)).
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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., 814 F.3d 1151, 1155 (10th Cir. 2016). There
are no allegations showing that Defendant Cale Robertson was acting under color of state law. In
addition, 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.
If Plaintiff asserts the Court should not dismiss her claims pursuant to 42 U.S.C. § 1983,
Plaintiff must file an amended complaint. 	The 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). 	The amended complaint must also comply with the Federal and Local Rules of Civil
Procedure.
Service on Defendant
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 show cause and file an amended complaint. The Court will address
service after this Order to Show Cause is resolved.
Order to Show Cause Regarding Notice of Removal
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-
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court records indicate that Plaintiff in this case, Belinda Roberts, is also 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.
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); see
also 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).
The Court orders 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.
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”).
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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.
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;
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(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 March 5, 2026, is GRANTED.
(ii) 	Plaintiff shall, within 21 days of entry of this Order: (a) show cause why the Court
should not dismiss her claims pursuant to 42 U.S.C. § 1983; and (b) file an
amended complaint. Failure to timely show cause and file an amended complaint
may result in dismissal of this case.
(iii) 	Plaintiff shall, within 21 days of entry of this Order 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. Failure
to timely show cause may result in remand of the removed case to state court.
IT IS SO ORDERED this 9th day of March, 2026.
__________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE
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