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Cruz v. Verizon Corp.

United States District Court, D. New Mexico

April 30, 2018

LUKIS CRUZ, Plaintiff.
v.
VERIZON CORPORATION. Defendant.

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

          ROBERT C. BRACK UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on pro se Plaintiffs Application to Proceed in District Court Without Prepaying Fees or Costs (Doc. 2). filed April 23. 2018 ('"Application"). and on his Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 (Doc. 1 ("Compl.")). filed April 23, 2018. For the reasons stated below, the Court will DISMISS this case without prejudice and DENY Plaintiffs Application as moot.

         Plaintiff asserts claims pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"). 18 U.S.C. §§ 1961 68. on the grounds that Defendant gave other persons access to the images and data on Plaintiffs phone. (See Compl. at 2.) It appears that Plaintiff is seeking the imposition of criminal penalties pursuant to 18 U.S.C. § 1963[1] because he refers to "'criminal intention, " "felonious actions, '" "criminal parties/' "criminal practices" and an "organized criminal enterprise." (Id. at 2-3.) The Court will dismiss Plaintiffs claims for criminal penalties because "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Diamond v. Charles, 476 U.S. 54, 64 (1986).

         Plaintiff also appears to seek a civil remedy pursuant to 18 U.S.C. § 1964(c)[2] because he requests "some form of monetary relief." (Compt. at 4.)

In order to bring a RICO claim, a plaintiff must allege a violation of 18 U.S.C. § 1962, which consists of four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. A pattern of racketeering activity must include at least two predicate acts. Additionally, a plaintiff has standing to bring a RICO claim only if he was injured in his business or property by reason of the defendant's violation of § 1962.

Gitmor v. Thomas. 490 F.3d 791. 797 (l()lh Cir. 2007). Standing is a component of this Court's jurisdiction, and the Court has an obligation "to consider it sua sponte to ensure the existence of an Article III case or controversy." Dias v. City & Cly. of Denver, 567 F.3d 1169. 1176 (10th Cir. 2009). The Court will dismiss Plaintiffs RICO claim for civil remedies due to Plaintiffs lack of standing to bring a RICO claim, because Plaintiff has not alleged that he was injured in his business or property by reason of Defendant's violation of 18 U.S.C. § 1962.[3]

         Finally. Plaintiff may also be asserting state law claims for breach of contract and invasion of privacy. (See Compl. at 2 (stating "[Defendant] violated the trust and contracts purchased by me" and “my right to privacy which by the outrageous price was more than assumed, but was violated severly [sic] and on large scale").) Having dismissed all of Plaintiff's federal law claims, the Court declines to exercise jurisdiction over Plaintiffs state law claims. See 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction . . . if . ., the district court has dismissed all claims over which it has original jurisdiction").

         Having dismissed all of Plaintiffs federal law claims and declining to exercise jurisdiction over Plaintiffs state law claims, the Court will dismiss this case without prejudice. See Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action"); Brereton v. Bountiful City Corp., 434 F.3d 1213, 1218 (10th Cir. 2006) ("[Dismissals for lack of jurisdiction should be without prejudice because the court, having determined that it lacks jurisdiction over the action, is incapable of reaching a disposition on the merits of the underlying claims.").

         IT IS ORDERED that

(i) this case is DISMISSED without prejudice; and
(ii) Plaintiffs Application to Proceed in District Court Without Prepaying Fees or Costs, Doc. 2. filed April 23. 2018, is DENIED as moot.

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Notes:

[1] 18 U.S.C. § 1963 provides in part:


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