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Arroyo v. Zamora

United States District Court, W.D. North Carolina, Charlotte Division

March 21, 2018

DANIEL J. ZAMORA, et al., Defendants.


          Frank D. Whitney Chief United States District Judge

         THIS 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).

         I. BACKGROUND

         Pro 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.[1] 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).

         Plaintiff 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.[2] 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.

         Plaintiff 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).

         She 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).


         Because 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).

         Rule 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.

         A 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).


         (1) 18 U.S.C. §§ 241, 242

         First, 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 defendants).

         Plaintiff, as a private citizen, is not authorized to bring criminal charges. Therefore, her claims under §§ 241 and 242 are dismissed with prejudice as frivolous.

         (2) 42 U.S.C. §§ 1983, 1985

         “Section 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).

         Section 1985 prohibits civil conspiracies that interfere with civil rights. To state a claim under § 1985, a plaintiff must show:

(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. 1995)).

         Plaintiffs 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 ...

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