Davis v. Kim

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
HAILEY DAVIS,
Plaintiff,
v. No. 2:26-cv-00036-KG-GJF
JUDY KIM,
Defendant.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
THIS MATTER comes before the Court on pro se Plaintiff’s Complaint, Doc. 1, filed
January 8, 2026, and Plaintiff’s Application to Proceed in District Court Without Prepaying Fees
or Costs (Short Form), Doc. 2, filed January 9, 2026 (“Short Form Application”).
The only allegations in the Complaint state:
1. Upon information and belief, Defendant had ex parte communication with
individual in 101014/2022 [sic],
2. Defendant conspired with individual in violation of due process,
3. This Court has jurisdiction under federal law.
4. Plaintiff demands a trial of jury and with compensation of $1,000,000.
Complaint at 1.
United States Magistrate Judge Gregory J. Fouratt 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 January 12, 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 February 2, 2026, deadline.
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Plaintiff also filed a motion to proceed in forma pauperis using a Short Form Application.
See Application to Proceed in District Court Without Prepaying Fees or Costs (Short Form),
Doc. 2, filed January 9, 2025. Judge Fouratt notified Plaintiff the Short Form Application does not
provide sufficient information 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 February 2, 2026, deadline.
Judge Fouratt’s Order to file an amended complaint and to file a Long Form Application
that the Clerk mailed to Plaintiff was “returned as undeliverable.” Doc’s 5, 6, filed January 22
and 26, 2026; 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 Fouratt’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 Fouratt’s Order to
file a Long Form Application, the Court denies Plaintiff’s Short Form Application to proceed
in forma pauperis.
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IT IS ORDERED that:
(i) This case is DISMISSED without prejudice.
(ii) Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs
(Short Form), Doc. 2, filed January 9, 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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