Opinion
5:22-CV-82-M
04-20-2022
WANDA MARIE ALLEN, Plaintiff, v. CITY OF RALEIGH POLICE DEPARTMENT and LIEUTENANT SHEABLE, Defendants.
ORDER AND MEMORANDUM AND RECOMMENDATION
ROBERT B. JONES, JR. UNITED STATES MAGISTRATE JUDGE
This matter is before the court on Plaintiff's application to proceed in forma pauperis, [DE-1], and for frivolity review of the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). The court provisionally allows the application to proceed in forma pauperis in order to conduct frivolity review, and it is recommended that the complaint be dismissed.
I. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1915(e)(2)(B), the court shall dismiss the complaint if it is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks money damages from a defendant immune from such recovery. 28 U.S.C. § 1915(e)(2)(B)(i-iii); see Adams v. Rice, 40 F.3d 72,74 (4th Cir. 1994) (explaining Congress enacted predecessor statute 28 U.S.C. § 1915(d) “to prevent abuse of the judicial system by parties who bear none of the ordinary financial disincentives to filing meritless claims”). A case is frivolous if it lacks an arguable basis in either law or fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989); McLean v. United States, 566 F.3d 391, 399 (4th Cir. 2009) (“Examples of frivolous claims include those whose factual allegations are ‘so nutty,' ‘delusional,' or ‘wholly fanciful' as to be simply ‘unbelievable.'”). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Neitzke, 490 U.S. at 327. A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
In determining whether a complaint is frivolous, “a court is not bound, as it usually is when making a determination based solely on the pleadings, to accept without question the truth of the Plaintiff's allegations.” Denton v. Hernandez, 504 U.S. 25, 32 (1992). Rather, the court may find a complaint factually frivolous “when the facts alleged rise to the level of the irrational or the wholly incredible, whether or not there are judicially noticeable facts available to contradict them.” Id. “The word ‘frivolous' is inherently elastic and not susceptible to categorical definition .... The term's capaciousness directs lower courts to conduct a flexible analysis, in light of the totality of the circumstances, of all factors bearing upon the frivolity of a claim.” Nagy v. Fed Med Ctr. Butner, 376 F.3d 252, 256-57 (4th Cir. 2004) (some internal quotation marks omitted). In making its frivolity determination, the court may “apply common sense.” Nasim v. Warden., Md House o/Correction, 64 F.3d 951, 954 (4th Cir. 1995).
In order to state a claim on which relief may be granted, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to relief above the speculative level . . .” Twombly, 550 U.S. at 555. While a complaint need not contain detailed factual allegations, the plaintiff must allege more than labels and conclusions. Id.
In the present case, Plaintiff is proceeding pro se, and pleadings drafted by a pro se litigant are held to a less stringent standard than those drafted by an attorney. See Haines v. Kerner, 404 U.S. 519, 520 (1972). This court is charged with liberally construing a pleading filed by a pro se litigant to allow for the development of a potentially meritorious claim. See id; Estelle v. Gamble, 429 U.S. 97, 106 (1976); Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994). However, the principles requiring generous construction of pro se complaints are not without limits; the district courts are not required “to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
II. ANALYSIS
A. Background
On March 7, 2022, Plaintiff initiated this case against the City of Raleigh Police Department and Lieutenant Sheable by filing an application to proceed in forma pauperis, [DE-1], and a proposed complaint, [DE-1 -1]. Plaintiff alleges that the defendant “repeatedly stalking in chase, ordered officers and [illegible] to stalk and chase Riza Marie Simpson. 09/8/2021- 12/14/2021.” Id. at 2. Plaintiff further claims that Ms. Simpson was an FBI Special Agent, and that defendant “fired gun shocks at her with intent to cause injury or death, also with intent to cause mental damage. 09/8/2021-12/14/2021.” Id. at 2. Plaintiff seeks relief of $300,000,000.00 in pain and suffering damages and “end of life,” and life in prison without parole, presumably for Defendant Sheable. Id. at 3. Plaintiff also submitted court documents from a criminal case charging Plaintiff with assault with a deadly weapon, a document titled Voluntary Statement, and photographs of a house and vehicles, [DE-4, -7-3]; documents related to no-contact proceedings initiated by Plaintiff against her neighbor and a Lieutenant with the Raleigh Police Department, documents from the Wake County Detention Center where Plaintiff was detained, and photographs of vehicles, [DE-5, -7-2, -8]; and Plaintiff's mental health records, documents from the Wake County Detention Center, and logs that appear to have been created by Plaintiff, [DE-6, -9].
B. Discussion
Plaintiff alleges her daughter was stalked and tased by law enforcement with the intent to injure or kill. Liberally construing the complaint, she asserts an excessive force claim under 42 U.S.C. § 1983 stemming from violations of her daughter's constitutional rights, a state law tort claim, and also seeks imprisonment of Lieutenant Sheable. Plaintiff's claims should be dismissed for failure to state a claim or because she lacks standing.
First, to the extent Plaintiff seeks to bring an individual claim for the alleged excessive force used against her daughter, “a § 1983 action is personal to the direct victim of the alleged constitutional violation.” Granados v. Unknown Officers of Bur. of Pris., No. 1:21CV948 (CMH/IDD), 2021 WL4988037, at *1 (E.D. Va. Oct. 1,2021) (citing Ransome v. Leach, No. 7:08-cv-403, 2008 WL 3850220, at *3 (WD. Va. Aug. 15, 2008)); see also Cook v. Howard, 484 Fed.Appx. 805, 825 (4th Cir. 2012) (denying a substantive due process claim to a family member of a decedent whose death was allegedly caused by the unlawful conduct of police officers); Midgett v. Cooper, No. 1:20-CV-00941,2021 WL 4973634, at *3 (M.D. N.C. Oct. 26,2021) (“a Section 1983 plaintiff, like any person who claims a deprivation of constitutional or federally-protected rights, must allege some violation of his or her personal rights - not those of another.”) (citing English v. Powell, 592 F.2d 727 (4th Cir. 1979) (wife had no standing to maintain action arising from husband's demotion on job); Dohaish v. Tooley, 670 F.2d 934 (10th Cir. 1982) (right to bring action under civil rights act is personal in nature and does not accrue to a relative); Topic v. Circle Realty Co., 532 F.2d 1273 (9th Cir. 1976) (litigants have no standing to assert civil rights of third parties injured by unlawful conduct)). Therefore, Plaintiff cannot state an individual claim for the alleged constitutional violations suffered by her daughter.
To the extent plaintiff seeks relief under § 1983 for the pain and suffering caused to Plaintiff 4 by her daughter's alleged abuse, she is likewise unable to state a claim because, “no cause of action may lie under section 1983 for emotional distress, loss of a loved one, or any other consequent collateral injuries allegedly suffered personally by the victim's family members.” Granados, 2021 WL 4988037, at *1 (citation omitted); see also Thomas-Boyd v. Rogers, No. 1:21-CV-22, 2021 WL 2256274, at *5 (M.D. N.C. June 3, 2021) (finding allegations that constitutional rights of immediate family members were violated, causing emotional distress and pain and suffering when plaintiff's decedent daughter died in police custody, failed to state a claim under § 1983). To the extent Plaintiff seeks to bring a § 1983 claim on behalf of her daughter, Plaintiff lacks standing to do so because she proceeds in this matter unrepresented by counsel and can only assert claims on her own behalf. See Myers v. Louden Cnty. Pub. Schs., 418 F.3d 395, 400 (4th Cir. 2005) (“The right to litigate for oneself, however, does not create a coordinate right to litigate for others.” (citing Oxendine v. Williams, 509 F.2d 1405, 1407 (4th Cir. 1975) (per curiam))).
Second, with respect to any state law tort claim, because Plaintiff has failed to state a federal claim, the court should decline to exercise jurisdiction over any state law claim. Where it is recommended that Plaintiff's federal claims be dismissed, the court may decline to exercise supplemental jurisdiction over any remaining state law claims. See 28 U.S.C. § 1367(c)(3) (providing that a court may decline to exercise supplemental jurisdiction if “the district court has dismissed all claims over which it has original jurisdiction”); Chesapeake Ranch Water Co. v. Bd. of Comm 'rs of Calvert Cnty., 401 F.3d 274, 277 (4th Cir. 2005) (concluding that having dismissed federal claims, the district court properly declined supplemental jurisdiction of state claims); Shanaghan v. Cahill, 58 F.3d 106,110 (4th Cir. 1995) (recognizing that under § 1367(c), the district courts “enjoy wide latitude in determining whether or not to retain [supplemental] jurisdiction over state claims when all federal claims have been extinguished”) (citing Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,350 (1988)). Furthermore, there is no basis for the court to exercise diversity jurisdiction over any state law claims. An action lies within the federal district court's diversity jurisdiction “where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between .. . citizens of different States . . . .” 28 U.S.C. § 1332(a)(1). Complete diversity among the parties is required, which means that no defendant can have the same citizenship as any plaintiff. Wisconsin Dep't of Corrs, v. Schacht, 524 U.S. 381, 388 (1998); Hawkins v. i-TV Digitalis Tavkozlesi zrt., 935 F.3d 211, 222 (4th Cir. 2019). The plaintiff is required to affirmatively allege facts demonstrating the court's jurisdiction in the complaint. Pinkley, Inc. v. City of Frederick, 191 F.3d 394, 399 (4th Cir. 1999). Plaintiff and Defendants are both alleged to be residents of North Carolina, so the court lacks diversity jurisdiction.
Finally, Plaintiff requests Lieutenant Sheable be imprisoned for life without parole. Compl. [DE-1-1] at 3. Criminal prosecutions are initiated by prosecutors, not by federal courts. See Jones v. Gen. Elec. Co., No. CV ELH-19-196, 2019 WL 6918490, at *9 (D. Md. Dec. 19, 2019) (concluding that “because ‘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, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973), ‘[a] private person may not initiate a criminal action in the federal courts.'”) (citing Ras-Selah: 7 Tafari: El v. Glasser and Glasser PLC, 434 Fed.Appx. 236, 236 (4th Cir. 2011) (per curiam); Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86-87 (2d Cir. 1972) (“It is a truism . . . that in our federal system crimes are always prosecuted by the Federal Govemment[.]”)). Accordingly, the court cannot impose a sentence of imprisonment on Defendant Sheable and this claim for relief should be dismissed.
III. CONCLUSION
For the reasons stated herein, the application to proceed in forma pauperis is allowed for the purpose of conducting frivolity review, and it is recommended that Plaintiff's § 1983 claims and federal prosecution claim be dismissed with prejudice and that Plaintiff's state law claims be dismissed without prejudice.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on Plaintiff. You shall have until May 4, 2022, to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C.
If you do not file written objections to the Memorandum and Recommendation by the foregoing deadline, you will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, your failure to file written objections by the foregoing deadline will bar you from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841,846-47 (4th Cir. 1985).