Opinion
5:22-CV-195-FL
02-06-2023
WANDA MARIE ALLEN, Plaintiff, v. LATOYA CHERRY, Defendant.
ORDER AND MEMORANDUM AND RECOMMENDATION
BRIAN S. MEYERS UNITED STATES MAGISTRATE JUDGE.
This pro se case is before the court on the application by plaintiff Wanda Marie Allen (“plaintiff”) to proceed in forma pauperis [D.E. 1] and for a frivolity review of the complaint pursuant to 28 U.S.C. § 1915. This matter was referred to the undersigned magistrate judge, pursuant to 28 U.S.C. § 636(b)(1).
In her civil cover sheet [D.E. 1-3], plaintiff lists “US Court of Appeals . . . 22-1361” as a related case. The referenced case is Wanda M. Allen v. City of Raleigh Police Dep't and Captain Murr, No. 5:21-cv-471-M (E.D. N.C. Dec. 08, 2021), appeal docketed, No. 22-1361 (4th Cir. Apr. 1, 2022). In that case, the Court of Appeals issued an unpublished opinion on December 22, 2022, dismissing plaintiff's two notices of appeal for failure to identify the order from which she sought to appeal, as well as the fact that “the district court [had] not yet entered any final or immediately appealable interlocutory or collateral order in [plaintiff's] civil case.” [4th Cir. Appeal No. 22-1361, D.E. 31 at 2].
Plaintiff's application appears incomplete as plaintiff filed two different versions of the in forma pauperis application form, a signed copy on May 16, 2022, [D.E. 1], and an unsigned copy with amended financial figures on September 16, 2022 [D.E. 13]. The court will, however, allow plaintiff's application to proceed in forma pauperis for the limited purpose of conducting frivolity review. See Richardson v. NC Dep't of Health & Hum. Servs., No. 5:12-CV-00180-D, 2012 WL 4426303, at *1 (E.D. N.C. June 29, 2012), report and recommendation adopted, No. 5:12-CV-180-D, 2012 WL 4426059 (E.D. N.C. Sept. 24, 2012).
As set out below, it is recommended, based on the frivolity review, that plaintiff's complaint be DISMISSED for lack of subject matter jurisdiction and, alternatively, for failure to state a claim upon which relief can be granted.,
On September 8, 2022, plaintiff filed an unsigned notice of appeal [D.E. 8] attaching over 40 pages of documentation [D.E. 8-1; 8-2]. Plaintiff states she is responding to the court's “August 8, 2022 Letter of Decision” which “stated the courts [sic] decision to dismiss my civil case against Latoya Cherry . . . due to my inability to pay an IFP application fee.” [D.E. 8-2] at 2. Plaintiff appears to have mistakenly construed Docket Entry 7 as a judgment or an appealable order dismissing her case. Docket Entry 7 is not a court order. It is a letter, dated August 8, 2022, from Deputy Clerk Collins to plaintiff explaining that plaintiff's case is under frivolity review. See [D.E. 7]. The United States Court of Appeals for the Fourth Circuit opened a case on appeal, Appellate Case Number 22-1980, and this case remains pending. [D.E. 10]. On December 29, 2022, the Court of Appeals issued a notice to plaintiff, pursuant to Local Rule of Appellate Procedure 45, stating that the court will dismiss the case for failure to prosecute unless the identified defaults are remedied by January 13, 2023. [4th Cir. Appeal No. 22-1980, D.E. 15-1]. The notice identifies the defaults as (i) plaintiff's failure to either pay the filing fee or to file an application to proceed in forma pauperis with the Court of Appeals, and (ii) plaintiff's failure to file an informal opening brief with the Court of Appeals. Id.
The undersigned finds it is appropriate to proceed with filing the instant memorandum and recommendation while plaintiff's appeal is pending, as plaintiff's appeal is from a non-appealable document (i.e., a letter to plaintiff from a deputy clerk of court [D.E. 7]). See Olavarria v. Jones, No. 5:19-CV-162-FL, 2020 WL 7407315, at *2 (E.D. N.C. Dec. 17, 2020), aff'd, 848 Fed.Appx. 138 (4th Cir. 2021) (“As to plaintiff's argument that the court acted inappropriately by allowing portions of the case, such as entry of an initial scheduling order, to continue while his appeal from a non-appealable order was pending, . . . there was no impropriety committed by the court during plaintiff's appeal's pendency.” (citing United States v. Hitchmon, 602 F.2d 689, 692-694 (5th Cir. 1979) (noting that the filing of notice of appeal from a non-appealable order does not divest district court of jurisdiction))); see also Adam v. Wells Fargo Bank, N.A., No. CIV.A. ELH-09-2387, 2011 WL 4592401, at *4 (D. Md. Sept. 30, 2011) (“A substantial body of precedent indicates that a notice of appeal does not divest a district court of jurisdiction when the appeal is taken from a non-appealable order or is otherwise patently frivolous. See generally George C. Pratt, 20 Moore's Federal Practice § 303.32[2][b][iv], at 303-80.1 to -83 (3d ed.2011) (citing cases).”)
MEMORANDUM AND RECOMMENDATION ON FRIVOLITY REVIEW
I. FACTUAL BACKGROUND AND CLAIMS
On May 16, 2022, plaintiff filed a complaint [D.E. 1-1] consisting of a complaint form with handwritten answers. Plaintiff subsequently filed various documents ostensibly in support of this original complaint. See [D.E. 6; 8-2; 14]. Plaintiff's supporting documentation consist largely of what appears to be law enforcement incident reports ([D.E. 6]; [D.E. 8-2] at 7-14; [D.E. 14] at 12, 16-19, 23, 25-27); certifications from the Clerk of Superior Court for Wake County, North Carolina that a criminal file does not exist ([D.E. 8-2] at 4, 6); pictures of plaintiff's home allegedly showing damage ([D.E. 8-2] at 21-27, 35; [D.E. 14-1] at 1); screenshots of various electronic devices that plaintiff claims show continued use of the devices after they were no longer in her possession ([D.E. 8-2] at 16-19; [D.E. 14-1] at 3, 7, 10-11); and information about jobs for which plaintiff was allegedly applying ([D.E. 8-2] at 35-41; [D.E. 14-1] at 2-3, 15).
As noted above, plaintiff's unsigned notice of appeal [D.E. 8] includes over 40 pages of documentation. While largely redundant of the types of claims and information provided elsewhere in her filings in this case, it appears to be intended to further supplement plaintiff's claims and is for this reason referenced in the court's discussion herein.
The screenshots appear to show a Google security notice recommending that an HP Chromebook and a Galaxy J3 Emerge be removed from an unspecified account due to inactivity. [D.E. 14-1] at 9.
Although plaintiff's handwritten complaint is difficult to read, plaintiff claims that: “Defendant Latoya Cherry not only human traffick [sic] Riza Marie Simpson FBI Special Agent (deceased)[.] Latoya Cherry assist in torturing and brutal treatment of inhuman [sic] against me, [sic] Riza Marie Simpson, FBI Special Agent (Deceased).” [D.E. 1-1] at 2. Based upon this complaint and the documentation attached to plaintiff's unsigned notice of interlocutory appeal [D.E. 8-2], plaintiff appears to allege that defendant and officers of the City of Raleigh Police Department tortured and deliberately caused the death of her daughter, Riza Marie Simpson, who plaintiff claims was an FBI Special Agent. Included in the documents ostensibly submitted in support of the complaint, plaintiff provides a summary of the claims and allegations referenced throughout the various filings:
Ms. Cherry participated in per-meditated [sic] murder: repeated break and entering [sic] in my home, deliberately squatting in my home for 90 days (October 2020 -December 2020) and causing extensive interior vandalism of my home and exterior damage of my car; Pre-meditated murder, by moving in next door to cause my death and the death of my daughter Ri'za Simpson (Latoya played the main role in Ri'za Marie Simpson: Human Trafficking - admission 02/08/22: Wake County District Court: soc hearing [sic]); pre-meditated murder by moving into my home for the purpose of causing vandalizing [sic] to my home: to extensive unbelievable damage of over $75,000; deliberately and repeatedly committing federal crime (bank robbery and repeated collecting my mail illegally, hacking into every email account I own: public libraries, Universities and County Business that Serve [sic] the Public); hacking in to my cell phone network and robbing me of every piece of clothing I own. 10/20/21 Latoya was attempting to cause my daughters [sic] death, Latoya again played a vital role in setting me up: M. Woods was a sheriff officer
who did not have jurisdiction in city limits to arrest anyone. The City of Raleigh Officer present was C. Little who was not on duty and Latoya lied about everything that happened that night and her involvement; this type of set-up with the same Law Enforcement are repeated exercised [sic] activity with Latoya, officer C. Little and Officer E. B Scott.[D.E. 8-2] at 2.
In her complaint, plaintiff seeks relief of “$1 dollar and life in prison and/or Death Penalty.” [D.E. 1-1] at 3. In her filed amended civil cover sheet, plaintiff appears to seek relief of “$8 million and Death.” [D.E. 1-3].
In her complaint form, plaintiff asserts that jurisdiction in this court arises under “440 Other Civil Rights”, “320 Assault, Libel and Slander”, and “360 Other Personal Injury.” [D.E. 1-1] at 2. In her completed and filed amended civil cover sheet [D.E. 1-3], plaintiff indicates that she is filing this action under the following federal statutes: 18 U.S.C. § 245; “Statute 249”; 14 U.S.C. § I, the “Act of 2009”, 440 and 360. Additionally, plaintiff indicates that the claims arise under diversity jurisdiction, but then provides that plaintiff and defendant are both citizens of North Carolina. See [D.E. 1-3] (Civ. Cover Sheet § II.4 (“Diversity” box marked as basis of jurisdiction); § III (“Plaintiff” and “Defendant” both marked as “Citizen of This State”)).
II. APPLICABLE LEGAL STANDARDS FOR FRIVOLITY REVIEW
After allowing a party to proceed in forma pauperis, as here, the court must conduct a frivolity review of the case pursuant to 28 U.S.C. § 1915(e)(2)(B). In such a review, the court must determine whether the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from an immune defendant, and is thereby subject to dismissal. 28 U.S.C. § 1915(e)(2)(B); see Denton v. Hernandez, 504 U.S. 25, 27 (1992) (standard for frivolousness). A case is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
In evaluating frivolity specifically, a pro se plaintiff's pleadings are held to “less stringent standards” than those drafted by attorneys. White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nonetheless, the court is not required to accept a pro se plaintiff's contentions as true. Denton, 504 U.S. at 32. The court is permitted to “pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless.” Neitzke, 490 U.S. at 327. Such baseless claims include those that describe “fantastic or delusional scenarios.” Id. at 328. Provided that a plaintiff's claims are not clearly baseless, the court must weigh the factual allegations in plaintiff's favor in its frivolity analysis. Denton, 504 U.S. at 32. The court must read the complaint carefully to determine if a plaintiff has alleged specific facts sufficient to support the claims asserted. White, 886 F.2d at 724.
Under Rule 8 of the Federal Rules of Civil Procedure, a pleading that states a claim for relief must contain “a short and plain statement of the grounds for the court's jurisdiction . . . [and] a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(1), (2). Case law explains that the factual allegations in the complaint must create more than a mere possibility of misconduct. Coleman v. Md. Ct. Appeals, 626 F.3d 187, 190 (4th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). Likewise, a complaint is insufficient if it offers merely “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted)).
A court may also consider subject matter jurisdiction as part of the frivolity review. See Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999) (holding that “[d]etermining the question of subject matter jurisdiction at the outset of the litigation is often the most efficient procedure”); Cornelius v. Howell, No. 3:06-3387-MBS-BM, 2007 WL 397449, at *2-4 (D.S.C. Jan. 8, 2007) (discussing the lack of diversity jurisdiction during frivolity review as a basis for dismissal). “Federal courts are courts of limited jurisdiction and are empowered to act only in those specific situations authorized by Congress.” Bowman v. White, 388 F.2d 756, 760 (4th Cir. 1968). The presumption is that a federal court lacks jurisdiction in a particular case unless it is demonstrated that jurisdiction exists. Lehigh Min. & Mfg. Co. v. Kelly, 160 U.S. 327, 336 (1895). The burden of establishing subject matter jurisdiction rests on the party invoking jurisdiction, here the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (“The burden of proving subject matter jurisdiction . . . is on the plaintiff, the party asserting jurisdiction.”). The complaint must affirmatively allege the grounds for jurisdiction. Bowman, 388 F.2d at 760. If the court determines that it lacks subject matter jurisdiction, it must dismiss the action. Fed.R.Civ.P. 12(h)(3). One basis for subject matter jurisdiction, so-called federal question jurisdiction, is that a claim arises under the Constitution, laws, or treaties of the United States. 28 U.S.C. § 1331. Another basis is diversity of citizenship or so-called diversity jurisdiction, which requires that the citizenship of each plaintiff be different from that of each defendant. Id. § 1332; see Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372-74 (1978).
III. ANALYSIS OF PLAINTIFF'S COMPLAINT
Having granted plaintiff's application to proceed in forma pauperis for the limited purpose of conducting frivolity review, the court must now undertake the frivolity review of this case pursuant to 28 U.S.C. § 1915(e)(2)(B). Under § 1915(e)(2)(B), a court shall dismiss a case if the action is: “(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Based upon the court's review and for the reasons stated below, the undersigned recommends this matter be dismissed in its entirety as frivolous and failing to state a claim.
A. Lack of subject matter jurisdiction
Plaintiff's complaint is subject to dismissal for lack of subject matter jurisdiction. While plaintiff has alleged diversity jurisdiction, the proposed complaint does not contain any facts to support such a determination. See Brissett v. Wells Fargo Bank, N.A., No. 4:17-CV-114-FL, 2017 WL 6368667, at *2 (E.D. N.C. 13 Dec. 2017) (dismissing claim for lack of subject matter jurisdiction on frivolity where complaint did not adequately plead that parties were citizens of different states). Plaintiff identifies both herself and defendant as citizens of North Carolina, which is also consistent with the other allegations she makes. [D.E. 1-3] (Civ. Cover Sheet § III). This shared citizenship expressly violates the requirement of diversity jurisdiction that the citizenship of each plaintiff be different from that of each defendant. 28 U.S.C. § 1332.
Plaintiff's complaint and ostensibly supporting documentation also appear to allege federal question jurisdiction based on: (a) 18 U.S.C. §§ 245 and “Statute 249”, each of which is a federal criminal statute; (b) 14 U.S.C. § I, which is a statute establishing the Coast Guard; (c) an otherwise unidentified “Act of 2009,” which the court construes as possibly referring to the Credit Card Accountability Responsibility and Disclosure Act of 2009 (“Credit Card Act of 2009”), PL 11124, May 22, 2009, 123 Stat 1734, (see [D.E. 1-3]); and (d) what appears to be references to the “Nature of Suit Code Descriptions” used on the Civil Cover Sheet Form JS 44 (Rev.04/21) for “440 Other Civil Rights,” “320 Assault, Libel and Slander,” and “360 Other Personal Injury,” (see [D.E. 1-1] at 2).
The court construes “Statute 249” to be a reference to 18 U.S. Code § 249, a federal hate crimes criminal statute.
18 U.S.C. §§ 245 and 249 are criminal statutes and do “not provide for any civil cause of action.” Lee v. Lewis, No. 2:10-CV-55-F, 2010 WL 5125327, at *2 (E.D. N.C. Oct. 28, 2010), report and recommendation adopted, No. 2:10-CV-55-F, 2010 WL 5125324 (E.D. N.C. Dec. 8, 2010). Similarly, as there are no facts in the pleadings that in any way implicate the establishment of the Coast Guard or credit card issues, 14 U.S.C. § I and the Credit Card Act of 2009 are equally misplaced.
The court concludes that the absence of diversity, as well as any actionable federal statutory or constitutional questions deprives this court of subject matter jurisdiction and this case should, therefore, be dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
B. Failure to state a claim upon which relief can be granted
In the alternative to the lack of subject matter jurisdiction, plaintiff's complaint should be dismissed for failure to state a claim upon which relief can be granted.
First, to the extent plaintiff seeks to bring a claim under 42 U.S.C. § 1983 for violation of her civil rights by means of her referencing the “Nature of Suit Code Descriptions” in her amended civil cover sheet, her claim still fails. To establish a claim under § 1983, a plaintiff must prove: “(1) the violation of a right secured by the Constitution and laws of the United States, and (2) that the alleged deprivation was committed by a person acting under the color of state law.” Hill v. Revells, No. 4:20-CV-233-FL, 2021 WL 312621, at *2 (E.D. N.C. Jan. 6, 2021), report and recommendation adopted, No. 4:20-CV-233-FL, 2021 WL 308592 (E.D. N.C. Jan. 29, 2021), aff'd, No. 21-2110, 2021 WL 5985559 (4th Cir. Dec. 17, 2021) (quoting Williams v. Studivent, No. 1:09CV414, 2012 WL 1230833, at *4 (M.D. N.C. 12 Apr. 2012)) (internal citations omitted) (internal quotation marks omitted). As noted above, plaintiff has failed to effectively allege any violations of the Constitution or the laws of the United States, and, in addition, failed to allege any facts to suggest that the defendant was acting under the color of state law. Accordingly, plaintiff's claims against defendant should be dismissed as frivolous or for failure to state a claim upon which relief may be granted.
Second, the deficient pleading in the complaint [D.E. 1-1], as ostensibly supplemented by the supporting documents [D.E. 6; 8-2; 14], also subjects the complaint to dismissal for failure to state a claim upon which relief may be granted. While pro se litigants are entitled to leniency, such leniency is not without bounds. See Salim-Gould v. Farrakhan, No. 2:15-CV-2-FL, 2015 WL 1046133, at *3 (E.D. N.C. Mar. 10, 2015) (“[T]he principles requiring generous construction of pro se complaints are not without limits.”). Plaintiff does not plead any cognizable facts to support her complaint regarding the alleged human trafficking and murder of Riza Marie Simpson. See generally [D.E. 1; 6; 8-2; 14]. Even if the court construes the supporting documentation [D.E. 6; 8-2; 14] to amend the complaint to include claims of assault, battery, larceny, trespass, computer hacking, destruction of property, and professional sabotage against plaintiff, the amended complaint, at best, contains conclusory and baseless accusations, and fails to set forth either factual or legal allegations, which are sufficient to state a cause of action upon which a claim may be based. See Denton, 504 U.S. at 33 (stating that “a finding of factual frivolousness is appropriate 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”); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th Cir. 1990).
Finally, plaintiff requests defendant be sentenced to life imprisonment or the death penalty. [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 Government[.]”)). Accordingly, the court cannot impose a sentence of imprisonment or death on defendant and this claim for relief should be dismissed.
The court therefore concludes that plaintiff's complaint fails to state a claim upon which relief may be granted and recommends that this case also be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
IV. CONCLUSION
For the reasons set forth above, it is RECOMMENDED that plaintiff's complaint be DISMISSED as frivolous and for failure to state a claim on which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii), respectively.
IT IS DIRECTED that a copy of this Order and Memorandum and Recommendation be served on plaintiff or, if represented, his counsel. Plaintiff shall have until January 19, 2023 to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct 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 a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party 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, the party's failure to file written objections by the foregoing deadline will bar plaintiff 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).