FOR THE DISTRICT OF NEW MEXICO LINDSAY C. SPILSBURY, Plaintiff, v. No. 2:24-cv-01043-JHR VERA DEMCHOK and U.S. DEPARTMENT OF EDUCATION, 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 October 15, 2024 (“Complaint”), and Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 3, filed October 15, 2024. 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 for the benefit of those too poor to pay or give security for costs....” Adkins v. E.I. DuPont de 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 $0.00; (ii) Plaintiff has no cash and no funds in bank accounts; and (iii) Plaintiff’s monthly expenses exceed “$2 trillion.” 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 and because she has no income.
Order to Show Cause Plaintiff alleges: [Defendant] Demchok et al has a federal student loan in my name with the U.S. Department of Education. . . U.S. Department of Education is arguing about my identity and shutting the account down and is threatening me w/ federal regulations. Vera Demchok [and others] have used my identity in a federal crime of forgery and have Demchok et al’s headset connected to my head. They are arguing about removing the headset and closing the accounts down. Vera Demchok is dangerous and so is the company they are murdering people.
Complaint at 2-3. The Complaint fails to state claims 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 that Defendant Demchok and Defendant U.S. Department of Education were acting under color of state law. There are also no allegations that Defendants deprived Plaintiff of a federally protected right. Furthermore, construing Plaintiff’s Section 1983 claim against the U.S. Department of Education as a Bivens claim, the Complaint fails to state a claim because a “Bivens cannot be asserted directly against the United States, federal officials in their official capacities, or federal agencies.” Smith v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); Ashcroft v. Iqbal, 556 U.S. 662, 675-76 (stating that Bivens actions are the “federal analog” to § 1983 actions). The Court orders Plaintiff to show cause why the Court should not dismiss this case for failure to state a claim. If Plaintiff asserts the Court should not dismiss this case, Plaintiff must file an amended complaint. The amended complaint must comply with the Federal and Local Rules of Civil Procedure and must state with particularity what each Defendant did to Plaintiff, when each Defendant did it, and what specific legal right Plaintiff believes each Defendant violated. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492
F.3d 1158, 1163 (10th Cir. 2007) (“[T]o state a claim in federal court, a 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.”). 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. 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.
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FOR THE DISTRICT OF NEW MEXICO LINDSAY C. SPILSBURY, Plaintiff, v. No. 2:24-cv-01043-JHR VERA DEMCHOK and U.S. DEPARTMENT OF EDUCATION, 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 October 15, 2024 (“Complaint”), and Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 3, filed October 15, 2024. 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 for the benefit of those too poor to pay or give security for costs....” Adkins v. E.I. DuPont de 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 $0.00; (ii) Plaintiff has no cash and no funds in bank accounts; and (iii) Plaintiff’s monthly expenses exceed “$2 trillion.” 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 and because she has no income.
Order to Show Cause Plaintiff alleges: [Defendant] Demchok et al has a federal student loan in my name with the U.S. Department of Education. . . U.S. Department of Education is arguing about my identity and shutting the account down and is threatening me w/ federal regulations. Vera Demchok [and others] have used my identity in a federal crime of forgery and have Demchok et al’s headset connected to my head. They are arguing about removing the headset and closing the accounts down. Vera Demchok is dangerous and so is the company they are murdering people.
Complaint at 2-3. The Complaint fails to state claims 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 that Defendant Demchok and Defendant U.S. Department of Education were acting under color of state law. There are also no allegations that Defendants deprived Plaintiff of a federally protected right. Furthermore, construing Plaintiff’s Section 1983 claim against the U.S. Department of Education as a Bivens claim, the Complaint fails to state a claim because a “Bivens cannot be asserted directly against the United States, federal officials in their official capacities, or federal agencies.” Smith v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009); Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971); Ashcroft v. Iqbal, 556 U.S. 662, 675-76 (stating that Bivens actions are the “federal analog” to § 1983 actions). The Court orders Plaintiff to show cause why the Court should not dismiss this case for failure to state a claim. If Plaintiff asserts the Court should not dismiss this case, Plaintiff must file an amended complaint. The amended complaint must comply with the Federal and Local Rules of Civil Procedure and must state with particularity what each Defendant did to Plaintiff, when each Defendant did it, and what specific legal right Plaintiff believes each Defendant violated. See Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492
F.3d 1158, 1163 (10th Cir. 2007) (“[T]o state a claim in federal court, a 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.”). 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. 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 ORDERED that: (1) Plaintiff’s Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 3, filed October 15, 2024, 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.
we) fa Liye * CY KAD a UNITED STATES MAGISTRATE JUDGE