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.
ORDER DENYING MOTION FOR LEAVE TO APPEAL IN FORMA PAUPERIS
Plaintiff Belinda Robertson, who is proceeding pro se, asserted civil rights claims pursuant
to 42 U.S.C. § 1983 and claims pursuant to state law against her husband, Defendant Cale
Robertson. See Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, Doc. 1, filed March 5, 2026.
United States Magistrate Judge Kevin R. Sweazea notified Plaintiff that the Complaint failed to
state claims pursuant to Section 1983 because there are no allegations showing that Defendant was
acting under color of state law and ordered Plaintiff to file an amended complaint. See Order to
Show Cause at 2-3, Doc. 6, filed March 9, 2026. The Court dismissed Plaintiff’s Section 1983
claims because the Amended Complaint did not show that Defendant was acting under color of
state law, declined to exercise supplemental jurisdiction over Plaintiff’s state-law claims and
dismissed the Amended Complaint. See Order of Dismissal at 1-3, Doc. 10, filed April 6, 2026.
Plaintiff also 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
Case 2:26-cv-00676-KG-KRS Document 24 Filed 05/06/26 Page 1 of 4

2
Court, County of Dona Ana, State of New Mexico. Judge Sweazea notified Plaintiff that the
federal removal statutes do not allow plaintiffs to remove civil actions to federal court and 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. The Court remanded Robertson v. Robertson, No. D-307-DV-2021-
00043, to the Third Judicial District Court, County of Dona Ana, State of New Mexico, because
Plaintiff did not cite any legal authority allowing a plaintiff to remove a case from state court to
federal court. See Order of Dismissal at 4.
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, dismissed this case without prejudice. See Order of Dismissal
at 4-5.
Plaintiff filed a Notice of Appeal, Doc. 20, filed May 4, 2026, and now seeks leave to
appeal in forma pauperis. See Motion for Leave to Proceed on Appeal Without Prepayment of
Costs or Fees, Doc. 21, filed May 4, 2026 (“Motion”).
“In order to succeed on [a motion for leave to proceed on appeal without prepayment of
costs or fees], an appellant must show a financial inability to pay the required filing fees and the
existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised
on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). “The Supreme Court
has held that good faith is to be judged by an objective standard, for review of any issue ‘not
frivolous.’” Spearman v. Collins, 500 Fed.Appx. 742, 743 (10th Cir. 2012) (citing Coppedge v.
United States, 369 U.S. 438, 445 (1962). “An appeal is frivolous when the result is obvious, or
the appellant’s arguments of error are wholly without merit.” Id.; see also Thompson v. Gibson,
Case 2:26-cv-00676-KG-KRS Document 24 Filed 05/06/26 Page 2 of 4

3
289 F.3d 1218, 1222 (10th Cir. 2002) (“an appeal is frivolous if it lacks an arguable basis in either
law or fact”).
Plaintiff has shown a financial inability to pay the required filing fees but has not set forth
a nonfrivolous argument of error regarding the Court’s dismissal of this case and remand of the
state-court case. Plaintiff sets forth two arguments in her Notice of Appeal. See also Motion at 2
(Where the Tenth Circuit form “Motion for Leave to Proceed on Appeal Without Prepayment of
Costs or Fees” prompts appellants to state their issues on appeal, Plaintiff did not write any issues).
First, Plaintiff argues that:
[The Court stated] That Only Defendants Can Moved Case to Federal, but in this
case Defendant Cale Robertson involves ideologically motivated violence, with
current trends showing rising domestic extremism and “lone offender” attacks
inspired by Foreign Groups. Threats include attacks on public spaces, critical
infrastructure, and the use of weapons of mass Destruction in the State of New
Mexico.
[sic] Notice of Appeal at 1.
Second, Plaintiff argues that:
The Honorable Judge Kenneth Gonzales, dismissed the case Without Prejudice in
the United States District Court of New Mexico, Plaintiff Provide evidence that
Judge of the Third Judicial District Recommended any Jurisdiction of this case only
in Federal Court for criminal, “Domestic Violence” “Domestic Terrorism” in a
Government Building for Defendant Cale Robertson and Judge Returned case that
Plaintiff Moved to a Federal Jurisdiction to a State Jurisdiction when is a Federal
Crime Against The Security Of The United States Of America In the State Of New
Mexico for Defendant Cale Robertson.
[sic] Notice of Appeal at 2.
Neither argument has an arguable basis in law. The removal statutes do not provide for
removal by plaintiffs. See 28 U.S.C. § 1441(a) (“any civil action brought in a State court ... may
be removed by the defendant or the defendants”); Robinson v. New Mexico, Order and Judgment
at 2, No. 18-2179 (10th Cir. June 28, 2019) (“[P]laintiffs are not entitled to remove cases to federal
Case 2:26-cv-00676-KG-KRS Document 24 Filed 05/06/26 Page 3 of 4

4
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)”). Private individuals cannot bring claims for
enforcement of criminal laws. See Kelly v. Rockefeller, 69 Fed.Appx.414, 415-416 (10th Cir.
2003) (“criminal statutes do not provide for private civil causes of action”); Diamond v. Charles,
476 U.S. 54, 64 (1986) (“a private citizen lacks a judicially cognizable interest in the prosecution
or nonprosecution of another”).
The Court concludes that Plaintiff's request for leave to appeal in forma pauperis must be
denied because Plaintiff has not identified "the existence of a reasoned, nonfrivolous argument on
the law and facts in support of the issues raised on appeal." DeBardeleben, 937 F.2d at 505.
IT IS ORDERED that Plaintiff’s Motion for Leave to Proceed on Appeal Without
Prepayment of Costs or Fees, Doc. 21, filed May 4, 2026, is DENIED.
/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.
Case 2:26-cv-00676-KG-KRS Document 24 Filed 05/06/26 Page 4 of 4