Robertson v. Robertson

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
BELINDA ROBERTSON,
Plaintiff,
v. 	Civ. No. 26‐888 GBW
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 24, 2026 (“Complaint”),
Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs,
Doc. 3, filed March 24, 2026 (“Application”), and Plaintiff’s Notice of Removal, Doc. 5,
filed March 24, 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.
Case 2:26-cv-00888-MIS-GBW Document 7 Filed 03/27/26 Page 1 of 9

2
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 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 Regarding Complaint
Plaintiff filed her Complaint using the form “Civil Rights Complaint Pursuant to
42 U.S.C. § 1983.” 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
against her former husband Defendant Cale Robertson based on Defendant’s actions in
Case 2:26-cv-00888-MIS-GBW Document 7 Filed 03/27/26 Page 2 of 9

3
and related to a state court case. See Complaint at 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, 2023 WL 4560223, at *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); Fed. R. Civ. P. 72(a)).
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) (citation omitted). There are no allegations showing that
Defendant Cale Robertson was acting under color of state law. The Complaint contains
conclusory allegations that Defendant violated Plaintiff’s rights under the First and
Fourteenth Amendments but does not clearly explain which federally protected rights
Plaintiff believes Defendant violated or how Defendant violated those rights. 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
Case 2:26-cv-00888-MIS-GBW Document 7 Filed 03/27/26 Page 3 of 9

4
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, 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 the state court case Cale Robertson v. Belinda
Robertson, No. M‐14‐CV‐202502187 from Magistrate Court, City of Las Cruces, State of
New Mexico, stating:
This Notice of Removal is timely filed pursuant to 28 U.S.C. S 1446(b)(3)
because it is being filed within 30 days after December 03, 2025, After
Defendant filed her Response Amendment that first introduced her
federal law claims.
Notice of Removal at 3.
Case 2:26-cv-00888-MIS-GBW Document 7 Filed 03/27/26 Page 4 of 9

5
It appears the removed case should be remanded back to the City of Las Cruces
Magistrate Court because Plaintiff has not met her burden of showing that this Court
could have exercised original jurisdiction over the removed case.
A defendant may remove a civil action initially brought in state court if
the federal district court could have exercised original jurisdiction. 28
U.S.C. § 1441(a). However, a federal court must remand a removed action
back to state court “[i]f at any time before final judgment it appears that
the district court lacks subject matter jurisdiction.” § 1447(c). The party
invoking federal jurisdiction has the burden to establish that it is proper,
and “there is a presumption against its existence.” Basso v. Utah Power &
Light Co., 495 F.2d 906, 909 (10th Cir. 1974).
Salzer v. SSM Health Care of Okla. Inc., 762 F.3d 1130, 1134 (10th Cir. 2014). Furthermore,
Under the well‐pleaded complaint rule, in order to invoke federal
question jurisdiction under 28 U.S.C. § 1331 and thus to be removable on
that basis, a federal question must appear on the face of the plaintiffʹs
complaint; that the defendant possesses a federal defense is not sufficient
to invoke federal question jurisdiction. Generally, the plaintiff is the
master of his complaint, and if he files in a state court pleading only state‐
law causes of action, the case is not removable to federal court based on
federal question jurisdiction.
Hansen v. Harper Excavating, Inc., 641 F.3d 1216, 1220 (10th Cir. 2011) (internal citations
omitted). Plaintiff has not shown that a federal question appears on the face of the
complaint filed in the City of Las Cruces Magistrate Court. The fact that Plaintiff
“alleged claims arising under federal law” in her answer to the state‐court complaint is
not sufficient to invoke federal question jurisdiction.
It also appears that Plaintiff’s removal is untimely.
The notice of removal of a civil action or proceeding shall be filed within
30 days after receipt by the defendant, through service or otherwise, of a
Case 2:26-cv-00888-MIS-GBW Document 7 Filed 03/27/26 Page 5 of 9

6
copy of the initial pleading setting forth the claim for relief upon which
such action or proceeding is based . . . [or] within 30 days after receipt by
the defendant, through service or otherwise, of a copy of an amended
pleading, motion, order or other paper from which it may first be
ascertained that the case is one which is or has become removable.
28 U.S.C. § 1446(b). Plaintiff has not shown that she filed the Notice of Removal within
30 days of service of the state court complaint which was filed on November 25, 2025,
and which she answered on December 15, 2025. Nor has Plaintiff shown that she filed
the Notice of Removal within 30 days of service of any other paper filed by Cale
Robertson in the state court case from which it may first be ascertained that Cale
Robertson’s case is one which is or has become removable. Plaintiff’s statement that the
Notice of Removal is timely “because it is being filed within 30 days after December 03,
2025,” is incorrect; Plaintiff filed the Notice of Removal on March 24, 2026.
The Court orders Plaintiff to show cause why the Court should not remand
Robertson v. Robertson, No. M‐14‐CV‐202502187, to the Magistrate Court, City of Las
Cruces, 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”).
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
Case 2:26-cv-00888-MIS-GBW Document 7 Filed 03/27/26 Page 6 of 9

7
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)).
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
Case 2:26-cv-00888-MIS-GBW Document 7 Filed 03/27/26 Page 7 of 9

8
best of the personʹs 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
(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. 3), filed March 24, 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.
Case 2:26-cv-00888-MIS-GBW Document 7 Filed 03/27/26 Page 8 of 9

9
(iii) 	Plaintiff shall, within 21 days of entry of this Order, show cause why the
Court should not remand Robertson v. Robertson, No. M‐14‐CV‐202502187,
to the Magistrate Court, City of Las Cruces, State of New Mexico. Failure
to timely show cause may result in remand of the removed case to state
court.
_____________________________________________
GREGORY B. WORMUTH
CHIEF UNITED STATES MAGISTRATE JUDGE
Case 2:26-cv-00888-MIS-GBW Document 7 Filed 03/27/26 Page 9 of 9