Perez v. New Mexico Children Youth and Families Department

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO
ANGELICA LEE PEREZ,
Plaintiff,
v. No. 2:26-cv-00523-GJF
NEW MEXICO CHILDREN, YOUTH
AND FAMILIES DEPARTMENT and
ROCIO RAKES,
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 Civil Rights Complaint
Pursuant to 42 U.S.C. § 1983, Doc. 1, filed February 20, 2026 (“Complaint”), and Plaintiff’s
Application to Proceed in District court Without Prepaying Fees or Costs, Doc. 2, filed
February 20, 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[.]
Menefee v. Werholtz, 368 Fed.Appx. 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
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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 provided the following information: (i) Plaintiff’s average monthly income
amount during the past 12 months is $298.00; (ii) Plaintiff’s monthly expenses total $488.00; and
(iii) Plaintiff has three minor children who rely on Plaintiff for support. The Court finds that
Plaintiff is unable to pay the costs of this proceeding because she signed an affidavit stating she is
unable to pay the costs of this proceeding, her monthly expenses exceed her low monthly income
and her three minor children rely on her for support.
Order to Show Cause
This case arises from child custody/welfare proceedings. See Complaint at 1. Plaintiff
alleges that Defendant Children, Youth and Families Department (“CYFD”) and Defendant Rakes,
a CYFD caseworker, violated Plaintiff’s due process, equal protection and parental rights. Plaintiff
seeks monetary damages. See Complaint at 7.
The Court has identified the following deficiencies in the Complaint and orders Plaintiff to
show cause why the Court should not dismiss Plaintiff’s claims. See Lowrey v. Sandoval County
Children Youth and Families Department, 2023WL4560223 *2 (10th Cir. July 17, 2023) (stating:
“Given a referral for non-dispositive pretrial matters, a magistrate judge may point out deficiencies
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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)).
First, as the party seeking to invoke the jurisdiction of this Court, Plaintiff bears the burden
of alleging facts that support jurisdiction. See Dutcher v. Matheson, 733 F.3d 980, 985 (10th Cir.
2013) (“Since federal courts are courts of limited jurisdiction, we presume no jurisdiction exists
absent an adequate showing by the party invoking federal jurisdiction”); Evitt v. Durland, 243 F.3d
388 *2 (10th Cir. 2000) (“even if the parties do not raise the question themselves, it is our duty to
address the apparent lack of jurisdiction sua sponte”) (quoting Tuck v. United Servs. Auto. Ass'n,
859 F.2d 842, 843 (10th Cir.1988).
Generally, states and their agencies are protected from suit by sovereign immunity,
as guaranteed by the Eleventh Amendment. “The ultimate guarantee of the Eleventh
Amendment is that nonconsenting States may not be sued by private individuals in
federal court.” Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S.Ct.
955, 148 L.Ed.2d 866 (2001). However, there are three exceptions to the Eleventh
Amendment's guarantee of sovereign immunity to states:
First, a state may consent to suit in federal court. Second, Congress
may abrogate a state's sovereign immunity by appropriate
legislation when it acts under Section 5 of the Fourteenth
Amendment. Finally, under Ex parte Young, 209 U.S. 123, 28 S.Ct.
441, 52 L.Ed. 714 (1908), a plaintiff may bring suit against
individual state officers acting in their official capacities if the
complaint alleges an ongoing violation of federal law and the
plaintiff seeks prospective relief.
Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159, 1166 (10th Cir. 2012) (internal
citations omitted and altered).
Levy v. Kansas Dept. of Social and Rehabilitation Services, 789 F.3d 1164, 1169 (10th Cir. 2015).
The Complaint fails to show that the Court has jurisdiction over Plaintiff’s claims against CYFD
because there are no factual allegations showing that any of the three exceptions to the Eleventh
Amendment's guarantee of sovereign immunity to states apply to Plaintiff’s claims against the
CYFD.
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Second, it appears the Complaint should be dismissed for failure to state a claim. Vague
and conclusory allegations such as “Defendants violated Plaintiff’s constitutional rights by
participating in the removal and continued custody of plaintiff’s children without adequate factual
basis, without sufficient investigation and without providing plaintiff meaningful procedural
protections” are not sufficient to state a plausible claim.
We use the Iqbal/Twombly standard to determine whether Plaintiffs have stated a
plausible claim. Brown v. Montoya, 662 F.3d 1152, 1162–63 (10th Cir. 2011). In
applying this standard, we take Plaintiffs’ well-pleaded facts as true, view them in
the light most favorable to Plaintiffs, and draw all reasonable inferences from the
facts in favor of Plaintiffs. Id. at 1162. A plausible claim includes facts from which
we may reasonably infer Defendant's liability. Id. at 1163. Plaintiffs must nudge the
claim across the line from conceivable or speculative to plausible. Id. Allegations
that are “‘merely consistent with’ a defendant's liability” stop short of that line.
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007)). Labels, conclusions, formulaic recitations of elements, and
naked assertions will not suffice. Id. An allegation is conclusory where it states an
inference without stating underlying facts or is devoid of any factual enhancement.
Kellum v. Mares, 657 Fed. App'x 763, 770 (10th Cir. 2016) (unpublished) (citing
Black's Law Dictionary (10th ed. 2014)). Conclusory allegations are “not entitled
to the assumption of truth.” Khalik v. United Air Lines, 671 F.3d 1188, 1193 (10th
Cir. 2012). In fact, we disregard conclusory statements and look to the remaining
factual allegations to see whether Plaintiffs have stated a plausible claim. Waller v.
City & Cnty. of Denver, 932 F.3d 1277, 1282 (10th Cir. 2019). We must draw on
our experience and common sense in evaluating the plausibility of a claim. Iqbal,
556 U.S. at 679, 129 S.Ct. 1937. The degree of specificity needed to establish
plausibility and provide fair notice depends on the context and the type of case. Id.;
Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021) (footnote omitted). The
Complaint does not contain allegations describing the alleged lack of an adequate factual bases,
insufficient investigation, denial of due process and interference with parental rights.
Third, the Complaint indicates Defendant Rakes is a CYFD caseworker and a citizen of
Texas. See Complaint at 2. The Complaint does not, however, contain factual allegations showing
that the Court has personal jurisdiction over nonresident Defendant Rakes. See Dental Dynamics,
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LLC v. Jolly Dental Group, LLC, 946 F.3d 1223, 1228 (10th Cir. 2020) (plaintiff bears burden of
establishing personal jurisdiction).
Finally, Plaintiff attached 330 pages of documents to the Complaint. “Exhibits are not
attached to a pleading unless the documents attached form the basis for the action,” for example a
contract in a breach of contract case. D.N.M.LR-Civ. 10.4. Furthermore, many of the exhibits are
not marked showing the portions of the exhibits Plaintiff wishes to bring to the Court’s attention.
See D.N.M.LR-Civ. 10.6 (“The portions of an exhibit the party wishes to bring to the Court’s
attention must be marked”). The Court will not review attached documents to determine whether
Plaintiff can state a plausible claim. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005) (“the court cannot take on the responsibility of serving as the litigant’s
attorney in constructing arguments and searching the record”).
If Plaintiff asserts the Court should not dismiss Plaintiff’s claims, Plaintiff must file an
amended complaint not exceeding 50 pages. The amended complaint “must explain what each
defendant did to him or her; when [each] defendant did it; how [each] defendant’s action harmed
him or her; and, what specific legal right the plaintiff believes [each] defendant violated.” Nasious
v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th
Cir. 2007) (emphasis added). The amended complaint must identify each proceeding in which the
acts giving rise to Plaintiff’s claims occurred, describe the nature of the proceedings including the
state law under which each proceeding arises, identify whether the proceedings are administrative
or court proceedings, provide the case numbers and initiating document for each proceeding, state
whether each proceeding is ongoing or has concluded, and state whether Plaintiff has appealed the
determination of any proceeding and the result of the appeal. The amended complaint must also
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comply with the Federal and Local Rules of Civil Procedure. See, for example,
Fed. R. Civ. P. 10(b) (“A party must state its claims or defenses in numbered paragraphs”).
Service on Defendants
Section 1915 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.
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 (October
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 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)).
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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 person's
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 THEREFORE ORDERED that:
(i) Plaintiff’s Application to Proceed in District court Without Prepaying Fees or Costs,
Doc. 2, filed February 20, 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.
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_____________________________________
UNITED STATES MAGISTRATE JUDGE
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