United States District Court, W.D. Kentucky, Owensboro Division
H. McKINLEY, JR. CHIEF JUDGE.
Carol Roberts is proceeding pro se and in forma pauperis in
this action. This matter is before the Court for screening
pursuant to 28 U.S.C. § 1915(e)(2) and McGore v.
Wrigglesworth, 114 F.3d 601 (6th Cir. 1997), overruled
on other grounds by Jones v. Bock, 549 U.S. 199
(2007). For the following reasons, this action will be
SUMMARY OF CLAIMS
names as Defendants various employees of the Liberty Mutual
Insurance Company, as well as a management services company,
and a private attorney. Plaintiff's complaint against the
numerous Defendants is difficult to follow. The initiating
document in this case refers to “proceeding according
to the common law . . . for . . . pain and suffering,
punitive damages, [and] charges, against those herein named .
. .” having to do with injuries to or medical issues
with her back, knees, and feet. Among the
“counts” she lists are deprivation of rights
under color of law; conspiracy to interfere with civil
rights; Racketeer Influenced and Corrupt Organizations Act
(RICO) racketeering; 18 U.S.C. §§ 241, 242, 1028,
and 2332b; and a No. of state-law claims. She also cites to
42 U.S.C. §§ 1983, 1985. Much of the complaint and
attachments thereto consists solely of unsupported legal
assertions not tied to any facts.
Plaintiff is proceeding in forma pauperis, this Court must
review the instant action. See 28 U.S.C. § 1915(e)(2);
McGore v. Wrigglesworth, 114 F.3d at 604-05. Upon
review, this Court must dismiss a case at any time if the
Court determines that the action is “frivolous or
malicious, ” fails to state a claim upon which relief
may be granted, or seeks monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). A
claim is legally frivolous when it lacks an arguable basis
either in law or in fact. Neitzke v. Williams, 490
U.S. 319, 325 (1989). The Court may, therefore, dismiss a
claim as frivolous where it is based on an indisputably
meritless legal theory or where the factual contentions are
clearly baseless. Id. at 327. When determining
whether Plaintiff has stated a claim upon which relief can be
granted, the Court must construe the complaint in a light
most favorable to Plaintiff and accept all of the factual
allegations as true. Prater v. City of Burnside,
Ky., 289 F.3d 417, 424 (6th Cir. 2002). A complaint, or
portion thereof, should be dismissed for failure to state a
claim upon which relief may be granted “only if it
appears beyond a doubt that the plaintiff can prove no set of
facts in support of his claim that would entitle him to
relief.” Brown v. Bargery, 207 F.3d 863, 867
(6th Cir. 2000). While a reviewing court must liberally
construe pro se pleadings, Boag v. MacDougall, 454
U.S. 364, 365 (1982) (per curiam), to avoid dismissal, a
complaint must include “enough facts to state a claim
to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Allegations under Title 18 of the U.S. Code
18 of the U.S. Code contains provisions of the criminal code.
As a private citizen, Plaintiff lacks “a judicially
cognizable interest in the prosecution or
nonprosecution” of Defendants under these statutes.
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).
Simply put, Plaintiff as a private citizen may not enforce
the federal criminal code. Abner v. Gen. Motors, 103
Fed.Appx. 563, 566 (6th Cir. 2004); Am. Postal Workers
Union, Detroit v. Indep. Postal Sys. of Am., 481 F.2d
90, 93 (6th Cir. 1973). Accordingly, Plaintiff lacks standing
to maintain the current action insofar as it purports to be
brought under these federal statutes, and the Court must
dismiss these claims for failure to state a claim upon which
relief may be granted. See Booth v. Henson, 290
Fed.Appx. 919, 921 (6th Cir. 2008) (per curiam) (affirming
district court's dismissal of a civil action brought
under 18 U.S.C. §§ 241 and 242).
bare reference to the RICO statute is insufficient to state a
claim. To state a civil RICO claim, a plaintiff must
establish four elements: “(1) conduct (2) of an
enterprise (3) through a pattern (4) of racketeering
activity.” Moon v. Harrison Piping Supply, 465
F.3d 719, 723 (6th Cir. 2006) (quoting Sedima, S.P.R.L.
v. Imrex Co., 473 U.S. 479, 496 (1985)). Plaintiff has
not alleged these elements or linked them to the alleged
facts. The Court will dismiss this claim.
§ 1983 claims
order to state a claim under § 1983, a plaintiff must
allege both a violation of a right or rights secured by the
Constitution and laws of the United States and that the
alleged deprivation was committed by a person acting under
color of state law. See West v. Atkins, 487 U.S. 42
(1988). Here, Plaintiff does not allege that any Defendant is
a government actor, and there is no suggestion by Plaintiff
that any Defendant is a government actor. Consequently,
Plaintiff has not stated a § 1983 claim.
§ 1985 claims
extent that Plaintiff is attempting to raise a claim under 42
U.S.C. § 1985(3), the Court finds that Plaintiff fails
to do so. In order to prove a claim of conspiracy in
violation of 42 U.S.C. § 1985(3), Plaintiff must prove:
(1) a conspiracy of two or more persons; (2) for the purpose
of depriving, directly or indirectly, a person or class of
persons of the equal protection of the laws; (3) an act in
furtherance of the conspiracy; (4) which causes injury to a
person or property, or the deprivation of any right or
privilege of the United States. Johnson v. Hills &
Dales Gen. Hospital,40 F.3d 837, 839 (6th Cir. 1994).
Plaintiff must also show that the conspiracy was motivated by
racial, or other class-based, invidiously discriminatory
animus, Griffin v. Breckenridge,403 U.S. 88, 102
(1971), and “[a] class protected by section §
1985(3) must possess the characteristics of a discrete and
insular minority, such as race, national origin, or
gender.” Haverstick Enters., Inc. v. Fin. Fed.
Credit, Inc.,32 F.3d 989, 994 (6th Cir. 1994). Further,
to state a claim for conspiracy under § 1985(3), there
must be ...