Clark v. Rosenthal et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LUCY CLARK,
Plaintiff,
v. No. 1:26-cv-01329-KG-KK
MICHAEL ROSENTHAL and
KEVIN MCCLANAHAN,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER comes before the Court on pro se Plaintiff’s Complaint, Doc. 1, filed
April, 27, 2026, and Plaintiff’s Application to Proceed in District Court Without Prepaying Fees
or Costs (Short Form), Doc. 2, filed April 27, 2026 (“Short Form Application”).
The only factual allegations in the Complaint state:
1. Defendant Kevin McClanahan violated due process,
2. Defendant Michael Rosenthal conspired with Kevin McClanahan,
3. Plaintiff demands an award to be decided by the Court.
Complaint at 1.
United States Magistrate Judge Kirtan Khalsa notified Plaintiff that the Complaint failed
to state a claim upon which relief can be granted and ordered Plaintiff to file an amended
complaint. See Order at 2, 4, Doc. 4, filed April 30, 2026 (notifying Plaintiff that failure to timely
file an amended complaint may result in dismissal of this case). Plaintiff did not file an amended
complaint by the May 21, 2026, deadline.
Plaintiff also filed a motion to proceed in forma pauperis using a Short Form Application.
Judge Khalsa notified Plaintiff the Short Form Application does not provide sufficient information
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for the Court to determine whether a plaintiff is unable to pay the required fees and ordered Plaintiff
to file an Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form).
See Order at 1, 4 (notifying Plaintiff that failure to timely file a Long Form Application may result
in denial of the motion to proceed in forma pauperis). Plaintiff did not file a Long Form
Application by the May 21, 2026, deadline.
Judge Khalsa’s Order to file an amended complaint and to file a Long Form Application
that the Clerk mailed to Plaintiff was “returned as undeliverable.” See Doc. 5, filed May 11, 2026.
See D.N.M.LR-Civ. 83.6 (“parties appearing pro se have a continuing duty to notify the Clerk, in
writing of any change in their . . . mailing address”).
The Court dismisses this case without prejudice because Plaintiff has not complied with
Judge Khalsa’s Order to file an amended complaint and to file a Long Form Application to proceed
in forma pauperis. 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)). Because
it is dismissing this case and based on Plaintiff’s failure to comply with Judge Khalsa’s Order to
file a Long Form Application, the Court denies Plaintiff’s Short Form Application to proceed
in forma pauperis.
IT IS ORDERED that:
(i) This case is DISMISSED without prejudice.
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(ii) Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs
(Short Form), Doc. 2, filed April 27, 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.
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