Spilsbury v. Demchok

Filing 11

MEMORANDUM OPINION AND ORDER by District Judge Kea W. Riggs denying 8 MOTION to Proceed. This case is DISMISSED without prejudice. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LINDSAY SPILSBURY,
Plaintiff,
v.

No. 2:23-cv-00917-KWR-GBW

CARICE DEMCHOK,
VERA DEMCHOK and
SETH DEMCHOK,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff, who is proceeding pro se, filed a complaint using the form “Civil Rights
Complaint Pursuant to 42 U.S.C. § 1983.”

Doc. 2, filed October 18, 2023 (“Complaint”).

Plaintiff alleged that Defendant Vera Demchok placed “an xhibit [sic] on our property” and
harasses Plaintiff by electronically communicating with Plaintiff using the “xhibit.” Complaint
at 2-6. Plaintiff asserted claims regarding her “right to privacy . . . right to cognitive liberty,
freedom of choice, speech, religion, cognitive liberty [sic], mental privacy, mental integrity and
psychological continuity.” Complaint at 4.
Chief United States Magistrate Judge Gregory B. Wormuth notified Plaintiff that:
The Complaint fails to state a claim pursuant to Section 1983. "The two elements
of a Section 1983 claim are (1) deprivation of a federally protected right by (2) an
actor acting under color of state law." Schaffer v. Salt Lake City Corp., 814 F.3d
1151, 1155 (10th Cir. 2016). There are no factual allegations showing that
Defendants were acting under color of state law. See Nasious v. Two Unknown
B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th
Cir. 2007) (“[T]o state a claim in federal court, a complaint must explain what each
defendant did to him or her; when the defendant did it; how the defendant’s action
harmed him or her; and, what specific legal right the plaintiff believes the
defendant violated.”).

Order at 2, Doc. 5, filed October 20, 2023. Judge Wormuth ordered Plaintiff to file an amended
complaint. See Order at 6.
Plaintiff filed her Amended Complaint using the form “Civil Rights Complaint Pursuant
to 42 U.S.C. § 1983.” Doc. 7, filed November 3, 2023 (“Complaint”). Where the complaint
form prompts plaintiffs to indicate whether defendants were acting under color of state law,
Plaintiff marked the “Yes” boxes. The complaint form also states “If your answer is ‘Yes’,
briefly explain.” Plaintiff’s explanations state: (i) Defendant Vera Demchok is “using my name
and created 10 of my names and is committing a cell phone virus and identity theft there are 10
Lindsays in the system;” and (ii) Defendants Carice Demchok, Vera Demchok and Seth
Demchok “are using my identity and creating a cell phone virus an using the government’s
system.” Amended Complaint at 1-2.
The Amended Complaint also alleges that: (i) Defendants “are committing a cell phone
virus medical malpractice using google[’]s services and Vera[’]s T(Android)13 and changing my
cell phone[’]s system so they can allow Vera to mutilate my body;” (ii) “Vera is using my
software on my cell phone and trying to murder me in my home;” (iii) Defendants Vera and
Carice Demchok have taken documents and other items from Plaintiff’s home; (ii) Defendants
Vera and Carice Demchok’s cell phones are operating under illegal software;” (iii) Defendant
Vera Demchok “and her family are operating the[ir] AI in our home and on our heads bod[ies]
and the[y’re] commit[t]ing a deadly virus.” Amended Complaint at 2-5.
Plaintiff also filed a Motion to Proceed which asserts the “Demchok family have violated
my civil rights” and contains allegations regarding Defendants’ actions and the harm Plaintiff
allegedly suffered due to those actions. See Doc. 8, filed November 3, 2023.

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The Amended Complaint fails to state a claim pursuant to 42 U.S.C. § 1983 because it
does not contain any factual allegations showing that Defendants are state actors. See Schaffer v.
Salt Lake City Corp., 814 F.3d 1151, 1155 (10th Cir. 2016) ("The two elements of a Section
1983 claim are (1) deprivation of a federally protected right by (2) an actor acting under color of
state law"). Plaintiff’s Motion to Proceed also does not contain any factual allegations showing
that Defendants were acting under color of state law. The Amended Complaint and Motion to
Proceed do not identify any other federal statutory or constitutional provisions to support federal
question jurisdiction over this matter. See Martinez v. U.S. Olympic Committee, 802 F.2d 1275,
1280 (10th Cir. 1986) (“The complaint must identify the statutory or constitutional provision
under which the claim arises, and allege sufficient facts to show that the case is one arising under
federal law”).
The Court dismisses Plaintiff’s claim pursuant to 42 U.S.C. § 1983 for failure to state a
claim.

Having dismissed Plaintiff’s federal law claims, the Court declines to exercise

supplemental jurisdiction of Plaintiff’s state law claims.

See 28 U.S.C. § 1367(c)(3) (“The

district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the
district court has dismissed all claims over which it has original jurisdiction”); Barnett v. Hall,
Estill, Hardwick, Gable, Golden & Nelson, P.C., 956 F.3d 1228, 1238 (10th Cir. 2020) (“The
Supreme Court has encouraged the practice of dismissing state claims or remanding them to state
court when the federal claims to which they are supplemental have dropped out before trial”).
IT IS ORDERED that:
(i)

Plaintiff’s Motion to Proceed, Doc. 8 filed November 3, 2023, is DENIED.

(ii)

This case is DISMISSED without prejudice.

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_________________________________
UNITED STATES DISTRICT JUDGE

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