United States District Court, D. New Mexico
LUKIS CRUZ, Plaintiff.
VERIZON CORPORATION. Defendant.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
C. BRACK UNITED STATES DISTRICT JUDGE
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.
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 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).
also appears to seek a civil remedy pursuant to 18 U.S.C.
§ 1964(c) 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.
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").
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.").
IS ORDERED that
(i) this case is DISMISSED without
(ii) Plaintiffs Application to Proceed in District Court
Without Prepaying Fees or Costs, Doc. 2. filed April 23.
2018, is DENIED as moot.
 18 U.S.C. § 1963 provides in