Robertson v. Markowski et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BELINDA ROBERTSON,
Plaintiff,
v. 	Civ. No. 26‐1572 GBW
THEODORE MARKOWSKI and
MARKOWSKI‐RUVALCABA LAW
FIRM LLC,
Defendants.
ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS
AND ORDER TO SHOW CAUSE
THIS MATTER comes before the Court on pro se Plaintiff’s Complaint, Doc. 1,
filed May 15, 2026, and Plaintiff’s Application to Proceed in District Court Without
Prepaying Fees or Costs, Doc. 2, filed May 15, 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 F. App’x 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 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
Plaintiff asserts claims for deprivation of civil rights and conspiracy pursuant to
42 U.S.C. § 1983 and claims pursuant to state law for malicious abuse of process,
defamation, violation of the New Mexico Civil Rights Act and fraud based on
Defendants’ acts in a state court case. See Complaint at 1. Defendant Markowski is a
private attorney representing Plaintiff in the state court case. See Complaint at 4, 6–7
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The Court has identified the following deficiencies 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, 2023 WL 4560223, *2
(10th Cir. July 17, 2023) (“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)).
The Complaint fails to state a claim for deprivation of civil rights 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 Defendants Markowski and Markowski‐Ruvalcaba Law Firm were acting under
color of state law. See DiCesare v. McAnally, 657 F. App’x 800, 802 (10th Cir. 2016) (“[A]
lawyer representing a client is not, by virtue of being an officer of the court, a state actor
‘under color of state law’ within the meaning of § 1983.”) (quoting Polk Cnty. v. Dodson,
454 U.S. 312, 318 (1981)). The Complaint contains conclusory allegations that
Defendants violated Plaintiff’s rights but does not clearly explain which rights Plaintiff
believes each Defendant violated. See Complaint at 3–4.
The Complaint also fails to state a plausible conspiracy claim pursuant to
42 U.S.C. § 1983. To state a Section 1983 conspiracy claim, a plaintiff has to allege
“specific facts showing an agreement [upon a common, unconstitutional goal], and
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concerted action [taken to advance that goal”] among defendants.” Bledsoe v. Carreno,
53 F.4th 589, 609 (10th Cir. 2022). Plaintiff makes vague, conclusory allegations that
Defendants conspired with others. See Complaint at 2 (“in conspiracy”), at 3, 4 (“with
complicity”), at 5 (“conspiracy with”), at 6 (“in complicity”), at 7 (“conspiracy and
complicity”), at 9 (“‘conspiracy’ 4 attorneys and Cale Robertson planned how to
affecting and depriving and violating the civil rights of [Plaintiff]” [sic]). Plaintiff has
not, however, alleged specific facts showing that Defendants agreed to deprive Plaintiff
of her constitutional rights and acted in concert to advance that goal.
If Plaintiff asserts the Court should not dismiss Plaintiff’s 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 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 show cause and file an
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amended complaint. The Court will address service after this Order to Show Cause is
resolved.
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
(Oct. 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 F. App’x
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 plaintiffʹs failure to prosecute or comply with the
rules of civil procedure or courtʹs orders.”) (quoting Olsen v. Mapes, 333 F.3d 1199, 1204
n.3 (10th Cir. 2003)).
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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 personʹs knowledge, information, and belief, formed after an
inquiry reasonable under the circumstances:
(1) it is not being presented for 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
(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).
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IT IS ORDERED that:
(i) 	Plaintiff’s Application to Proceed in District Court Without Prepaying
Fees or Costs, Doc. 2, filed May 15, 2026, is GRANTED.
(ii) 	Plaintiff shall, within 21 days of entry of this Order: (a) show cause why
the Court should not dismiss this case; and (b) file an amended complaint. Failure to
timely show cause and file an amended complaint may result in dismissal of this case.
IT IS SO ORDERED.
_____________________________________________
GREGORY B. WORMUTH
CHIEF UNITED STATES MAGISTRATE JUDGE
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