Spilsbury v. Demchok et al

Filing 8

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez DISMISSING #1 Complaint without prejudice. (bap)

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

No. 2:24-cv-00404-MV-JHR

VERA DEMCHOK and
CARICE DEMCHOK,
Defendants.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff, who is proceeding pro se, alleged:
Carice Demchok has allowed her daughter Vera Demchok to breach confidential
privacy Vera has been extremely dangerous about electronicly or digitally
harrassing me Vera has a brain exhibit on my brother’s phone she knows what I
think and shes using and sharing my thoughts digitally and harassing me to the
extent of murder. Vera has war weapons w/ the exhibit and she uses them on my
body and has made extremley sick. Shes threatning my freedom and shes violating
my human rights. . . Vera Demchok raged war on me poisioned me . . . Carice
allowed Vera to rape me . . . Vera Demchok . . . has taken my identity social security
Indian cards naturalization documents college degree arrest records document on
my divorce documents on my attorney . . . Donald Trump, the press, the media, the
public, Vera Demchok is broadcasting me. Joe biden can hear me due to Vera
Demchok broadcasting me.
[sic] Doc. 1 (Civil Rights Complaint Pursuant to 42 U.S.C. § 1983, filed April 29, 2024)
(“Complaint”)) at 2-4.
United States Magistrate Judge Jerry H. Ritter notified Plaintiff:
There is no properly alleged federal-question jurisdiction because the Complaint
does not allege that this action “aris[es] under the Constitution, laws, or treaties of
the United States.” 28 U.S.C. § 1331.
“For a case to arise under federal law within the meaning of § 1331,
the plaintiff's well-pleaded complaint must establish one of two
things: either that federal law creates the cause of action or that the
plaintiff's right to relief necessarily depends on resolution of a

substantial question of federal law” . . . “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.”
Davison v. Grant Thornton LLP, 582 F. App’x 773, 775 (10th Cir. 2014) (quoting
Firstenberg v. City of Santa Fe, 696 F.3d 1018, 1023 (10th Cir. 2012) and Martinez
v. U.S. Olympic Committee, 802 F.2d 1275, 1280 (10th Cir. 1986)). Plaintiff filed
her Complaint using the form “Civil Rights Complaint Pursuant to
42 U.S.C. § 1983.” Plaintiff has not shown that this case arises under Section 1983
because there are no factual allegations showing that Defendants were acting under
color of state law. 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.”).
There is no properly alleged diversity jurisdiction. To invoke diversity jurisdiction,
“a party must show that complete diversity of citizenship exists between the adverse
parties and that the amount in controversy exceeds $75,000.” Symes v. Harris, 472
F.3d 754, 758 (10th Cir. 2006). “Complete diversity is lacking when any of the
plaintiffs has the same residency as even a single defendant.” Dutcher v. Matheson,
733 F.3d 980, 987 (10th Cir. 2013). Plaintiff, who is a citizen of New Mexico, has
not alleged that Defendants are citizens of a state other than New Mexico.
Doc. 5 (Order to Show Cause, filed May 1, 2024) at 3-4.
Judge Ritter ordered Plaintiff to show cause why the Court should not dismiss this case for
lack of jurisdiction and to file an amended complaint. Id. at 6. Judge Ritter also notified Plaintiff
that failure to timely show cause and file an amended complaint might result in dismissal of this
case. Id. at 6. Plaintiff did not show cause, file an amended complaint, or otherwise respond to
the Order to Show Cause by the May 22, 2024, deadline. For this reasons, this case will be
dismissed.

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IT IS ORDERED that this case is DISMISSED without prejudice.

_________________________________________
MARTHA VÁZQUEZ
SENIOR UNITED STATES DISTRICT JUDGE

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