IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO DANIELLE VAN GORDEN, Plaintiff, v. No. 1:25-cv-00713-LF
KIRTLAND AIR FORCE BASE, Defendant. ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND ORDER TO SHOW CAUSE THIS MATTER comes before the Court on pro se Plaintiff’s Complaint for a Civil Case, Doc. 1, filed July 28, 2025 (“Complaint”), and Plaintiff’s Application to Proceed in District court Without Prepaying Fees or Costs, Doc. 3, filed July 28, 2025 (“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 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 during the past 12 months is $0.00. 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 these proceedings and she has no income. Order to Show Cause The Complaint alleges: Plaintiff was unfairly told they could not be on Maxwell housing of Kirtland Air Force Base for the reason of losing their job. The defendant’s security police had illegally taken away the plaintiff’s base pass despite plaintiff having a lease on Maxwell housing and they completely disregarded the plaintiff’s Power of Attorney for the plaintiff’s veteran father without nullifying the Power or [sic] Attorney in court. defendant didn’t allow plaintiff additional time to move from the housing base and required the plaintiff to move immediately leaving the plaintiff homeless temporarily. This rendered the plaintiff unable to take care of their parents who still reside in the Maxwell Housing base.
Complaint at 4. Plaintiff asserts civil rights claims against Defendant. See Complaint at 3. The Court has identified the following deficiencies in the Complaint, described below, and orders Plaintiff to show cause why the Court should not dismiss this case. See Lowrey v. Sandoval County Children Youth and Families Department, 2023-WL-4560223 *2 (10th Cir. July 17, 2023) (stating: “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) and Fed. R. Civ. P. 72(a)). First, it appears this case should be dismissed because Plaintiff has not shown that the Court has jurisdiction over her claims against Kirtland Air Force Base. “The United States is immune from suit unless Congress has expressly waived its sovereign immunity.” High Lonesome Ranch, LLC v. Bd. Of County Comm’rs for the County of Garfield, 61 F.4th 1225, 1237 (10th Cir. 2023) (citing Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280 (1983)).
“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” [F.D.I.C. v.] Meyer, 510 U.S. [471,] at 475. “It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” Id. (internal quotation marks omitted). “A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text and will not be implied. Moreover, a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations omitted).
Thus, “jurisdiction over any suit against the Government requires a clear statement from the United States waiving sovereign immunity, together with a claim falling within the terms of the waiver.” Speidell v. United States, 978 F.3d 731, 745–46 (10th Cir. 2020) (brackets and internal quotation marks omitted). Additionally, “[a] suit against a [federal] government agent in his official capacity is treated as a suit against the government.” Mocek v. City of Albuquerque, 813 F.3d 912, 932 (10th Cir. 2015).
Clark v. Haaland, 2024 WL 4763759 *7 (10th Cir.). Plaintiff has not identified any authority showing that the Federal Government unequivocally waived its sovereign immunity for the acts alleged in this case. Second, it appears the Complaint should be dismissed for failure to state a claim upon which relief can be granted. 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.
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO DANIELLE VAN GORDEN, Plaintiff, v. No. 1:25-cv-00713-LF
KIRTLAND AIR FORCE BASE, Defendant. ORDER GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND ORDER TO SHOW CAUSE THIS MATTER comes before the Court on pro se Plaintiff’s Complaint for a Civil Case, Doc. 1, filed July 28, 2025 (“Complaint”), and Plaintiff’s Application to Proceed in District court Without Prepaying Fees or Costs, Doc. 3, filed July 28, 2025 (“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 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 during the past 12 months is $0.00. 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 these proceedings and she has no income. Order to Show Cause The Complaint alleges: Plaintiff was unfairly told they could not be on Maxwell housing of Kirtland Air Force Base for the reason of losing their job. The defendant’s security police had illegally taken away the plaintiff’s base pass despite plaintiff having a lease on Maxwell housing and they completely disregarded the plaintiff’s Power of Attorney for the plaintiff’s veteran father without nullifying the Power or [sic] Attorney in court. defendant didn’t allow plaintiff additional time to move from the housing base and required the plaintiff to move immediately leaving the plaintiff homeless temporarily. This rendered the plaintiff unable to take care of their parents who still reside in the Maxwell Housing base.
Complaint at 4. Plaintiff asserts civil rights claims against Defendant. See Complaint at 3. The Court has identified the following deficiencies in the Complaint, described below, and orders Plaintiff to show cause why the Court should not dismiss this case. See Lowrey v. Sandoval County Children Youth and Families Department, 2023-WL-4560223 *2 (10th Cir. July 17, 2023) (stating: “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) and Fed. R. Civ. P. 72(a)). First, it appears this case should be dismissed because Plaintiff has not shown that the Court has jurisdiction over her claims against Kirtland Air Force Base. “The United States is immune from suit unless Congress has expressly waived its sovereign immunity.” High Lonesome Ranch, LLC v. Bd. Of County Comm’rs for the County of Garfield, 61 F.4th 1225, 1237 (10th Cir. 2023) (citing Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280 (1983)).
“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” [F.D.I.C. v.] Meyer, 510 U.S. [471,] at 475. “It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” Id. (internal quotation marks omitted). “A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text and will not be implied. Moreover, a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citations omitted).
Thus, “jurisdiction over any suit against the Government requires a clear statement from the United States waiving sovereign immunity, together with a claim falling within the terms of the waiver.” Speidell v. United States, 978 F.3d 731, 745–46 (10th Cir. 2020) (brackets and internal quotation marks omitted). Additionally, “[a] suit against a [federal] government agent in his official capacity is treated as a suit against the government.” Mocek v. City of Albuquerque, 813 F.3d 912, 932 (10th Cir. 2015).
Clark v. Haaland, 2024 WL 4763759 *7 (10th Cir.). Plaintiff has not identified any authority showing that the Federal Government unequivocally waived its sovereign immunity for the acts alleged in this case. Second, it appears the Complaint should be dismissed for failure to state a claim upon which relief can be granted. 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). Plaintiff’s vague, conclusory allegations regarding Defendant illegally confiscating Plaintiff’s base pass and requiring Plaintiff to immediately move from the base, without supporting factual allegations, are not sufficient to state a claim. Furthermore, Plaintiff has not identified the legal rights she believes 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.”). If Plaintiff agrees with the Court’s analysis regarding these deficiencies in her complaint, rather than show cause, she may amend her complaint. The amended complaint must comply with the Federal and Local Rules of Civil Procedure. See, e.g., 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 or 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)). 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 July 28, 2025, is GRANTED. (ii) ~— Plaintiff shall, within 21 days of entry of this Order: (1) show cause why the Court should not dismiss this case or (11) file an amended complaint. Failure to timely show cause or file an amended complaint may result in dismissal of this case.
fi. C-A.C> Kata Bes a (laura Fashing.” SN United States Magistrate Judge