United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney Chief United States District Judge
MATTER is before the Court on initial review of the
Complaint, (Doc. No. 1), Plaintiff's Application to
Proceed in District Court Without Prepaying Fees or Costs,
(Doc. No. 2), Plaintiff's Motion for a Preliminary
Injunction, (Doc. No. 3), and Plaintiff's Verified Motion
for Entry of [Default] Judgment, (Doc. No. 5).
se Plaintiff Valerie Arroyo, a resident of North
Carolina, filed this action on December 15, 2017, pursuant to
42 U.S.C. §§ 1983 and 1985, and 18 U.S.C.
§§ 241 and 242. She names as Defendants: Attorney
Daniel J. Zamora in his individual and official capacities,
and the following in their official capacities: Attorney Chad
Diamond, the North Carolina State Bar; the Mecklenburg County
Clerk of Superior Court, Civil Division; and the State of
North Carolina. (Doc. No. 1 at 1-2). She additionally names
in the body of her Complaint the North Carolina Judicial
Standard Commission and the North Carolina, Department of
Justice. (Doc. No. 1 at 8).
alleges that the Defendants violated her rights under the
United States Constitution and North Carolina law in relation
to two lawsuits in North Carolina Superior
Court. The first was apparently a negligence
action that Plaintiff brought against Zamora, and a second
action brought by Zarmora against Plaintiff. Zamora was
apparently represented in both actions by Mr. Diamond.
Plaintiff alleges that Zamora and Diamond used false
affidavits to defeat her in both actions without a jury
trial, that the other Defendants displayed favoritism towards
Zamora and Diamond, and that all the Defendants violated
North Carolina laws and procedures as well as Plaintiff's
federal civil rights. She seeks declaratory judgment,
compensatory and punitive damages, injunctive relief, and any
other relief the Court deems just and equitable.
filed a motion for preliminary injunction, (Doc. No. 3), to
prevent Defendants “from violation of civil right act,
deprivation of rights under color of law, and violation of
constitutional amendments, and abuse of process, and failure
to act, and breach of fiduciary duties, and intentional
infliction of emotional distress, and negligence, and false
malicious prosecution, or contacting Plaintiff or her family
during the pendency of this case, and for other
relief.” (Doc. No. 3 at 1-2).
also seeks default judgment, claiming that Defendants'
response was due on January 10, 2018, and their failure to do
so warrants entry of default judgment in her favor pursuant
to Rule 55. (Doc. No. 5).
STANDARD OF REVIEW
Plaintiff seeks to proceed in forma pauperis, the
Court must review the Complaint to determine whether it is
subject to dismissal on the grounds that it is
“frivolous or malicious; fails to state a claim on
which relief may be granted; or seeks monetary relief against
a defendant who is immune from such relief.” 28 U.S.C.
§ 1915(e)(2)(B)(i)-(iii). The Court must determine
whether the Complaint raises an indisputably meritless legal
theory or is founded upon clearly baseless factual
contentions, such as fantastic or delusional scenarios.
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
8(a)(2) of the Federal Rules of Civil Procedure requires
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Erickson v.
Pardus, 551 U.S. 89, 93 (2007). The statement of the
claim does not require specific facts; instead, it
“need only ‘give the defendant fair notice of
what the ... claim is and the grounds upon which it
rests.' ” Id. (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). However,
the statement must assert more than “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555.
pro se complaint must be construed liberally.
Haines v. Kerner, 404 U.S. 519, 520 (1972); see
also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009)
(“Liberal construction of the pleadings is particularly
appropriate where … there is a pro se
complaint raising civil rights issues.”). However, the
liberal construction requirement will not permit a district
court to ignore a clear failure to allege facts in the
complaint which set forth a claim that is cognizable under
federal law. Weller v. Dep't of Soc. Servs., 901
F.2d 387 (4th Cir. 1990).
18 U.S.C. §§ 241, 242
Plaintiff attempts to invoke two federal statutes
criminalizing conspiracies and deprivation of rights under
the color of law. However, “in American jurisprudence
…, a private citizen lacks a judicially cognizable
interest in the prosecution or nonprosecution of
another.” Linda R.S. v. Richard D., 410 U.S.
614, 619 (1973)); Harris v. Salley, 339 Fed.Appx.
281 (4th Cir. 2009) (prisoner lacked equal protection right
to have criminal proceedings instituted against § 1983
as a private citizen, is not authorized to bring criminal
charges. Therefore, her claims under §§ 241 and 242
are dismissed with prejudice as frivolous.
42 U.S.C. §§ 1983, 1985
1983 imposes liability on state actors who cause the
deprivation of any rights, privileges or immunities secured
by the Constitution.” Loftus v. Bobzien, 848
F.3d 278, 284 (4thCir. 2017) (quoting Doe v.
Rosa, 795 F.3d 429, 436 (4th Cir. 2015)). To
state a claim under § 1983, a plaintiff must allege that
the defendant, acting under the color of law, violated her
federal constitutional or statutory rights and thereby caused
injury. Crosby v. City of Gastonia, 635 F.3d 634,
639 (4th Cir. 2011).
1985 prohibits civil conspiracies that interfere with civil
rights. To state a claim under § 1985, a plaintiff must
(1) a conspiracy of two or more persons, (2) who are
motivated by a specific class-based, invidiously
discriminatory animus to (3) deprive the plaintiff of the
equal enjoyments of rights secured by the law to all, (4) and
which results in injury to the plaintiff as (5) a consequence
of an overt act committed by the defendants in connection
with the conspiracy.
Thomas v. The Salvation Army So. Territory, 841 F.3d
632, 637 (4th Cir. 2016) (quoting Simmons
v. Poe, 47 F.3d 1370, 1376 (4th Cir.
making claims under §§ 1983 and 1985 must show that
their constitutional rights were violated under the color of
law. Willis v. Town of Marshall, 293 F.Supp.2d 608,
613 (W.D. N.C. Nov. 25, 2003) (citing Lugar v. Edmondson
Oil Co., Inc., 457 U.S. 922, 924 (1982); Adickes v.
S.H. Kress & Co., 398 U.S. 144, 166 n.31 (1970)). If
the defendant is not a state actor, there must be a
“sufficiently close relationship with state actors such
that a court would conclude that the non-state actor is
engaged in the ...