Nelson v. Regions Bank (INMATE1)

Filing 4

REPORT AND RECOMMENDATIONS re 1 Inmate 1983 Complaint filed by Dennis Nelson, it is the Recommendation of the Mag Judge that this case be dismissed with prejudice prior to service of process pursuant of the directives of 28 USC 1915(e)(2)(B)(i); Objections to R&R due by 9/11/2006. Signed by Judge Delores R. Boyd on 8/29/06. (vma, )

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Nelson v. Regions Bank (INMATE1) Doc. 4 Case 2:06-cv-00770-MHT-DRB Document 4 Filed 08/29/2006 Page 1 of 4 IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION DENNIS NELSON, Plaintiff, v. REGIONS BANK, Defendant. ) ) ) ) ) CIVIL ACTION NO. 2:06-CV-770-MHT ) [W O ] ) ) ) RECOMMENDATION OF THE MAGISTRATE JUDGE In this 42 U.S.C. 1983 action, Dennis Nelson ["Nelson"], an inmate confined at a c o rre c tio n a l facility in Comstock, New, York, complains that in December of 2005 Regions B a n k ["Regions"] failed to provide him "blank checks" upon his opening an account. Pla in tiff's Complaint at 2. Nelson asserts he now has no access to his funds because he does n o t remember the address for Regions. Id. at 3. Upon review of the complaint, the court concludes that dismissal of this case is ap p rop riate under 28 U.S.C. 1915(e)(2)(B)(i).1 D IS C U S S IO N A n essential element of a 42 U.S.C. 1983 action is that a person acting under color o f state law whose conduct is reasonably attributable to the State committed the alleged co n stitutio n al deprivation. American Manufacturers Mutual Ins. Co. v. Sullivan, 526 U.S. 1 1. A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint screened in accordance with the provisions of 28 U.S.C. 1915(e)(2)(B). This screening procedure requires the court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is frivolous, malicious, fa ils to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune fr om such relief. 28 U. S. C . 1915(e)(2)(B)(i)-(iii). Case 2:06-cv-00770-MHT-DRB Document 4 Filed 08/29/2006 Page 2 of 4 4 0 , 119 S.Ct. 977, 985, 143 L.Ed.2d 130 (1999); Parratt v. Taylor, 451 U.S. 527 (1981); W illis v. University Health Services, Inc., 993 F.2d 837, 840 (11 th Cir. 1993). To state a via b le claim for relief under 1983, a plaintiff must assert that he was "deprived of a right s e c u re d by the Constitution or laws of the United States, and that the alleged deprivation was c o m m itte d under color of state law. Like the state-action requirement of the Fourteenth A m e n d m e n t, the under-color-of-state-law element of 1983 excludes from its reach `"m ere ly private conduct, no matter how discriminatory or wrongful,"' Blum v. Yaretsky, 457 U .S. 991, 1002, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982) (quoting Shelley v. Kraemer, 334 U .S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161 (1948))." American Manufacturers, 526 U.S. at 495 0 , 119 S.Ct. at 985. Consequently, the Eleventh Circuit has repeatedly insisted "that state a c tio n requires both an alleged constitutional deprivation `caused by the exercise of some righ t or privilege created by the State or by a rule of conduct imposed by the State or by a p erso n for whom the State is responsible,' and that `the party charged with the deprivation m u st be a person who may fairly be said to be a state actor.' Lugar v. Edmondson Oil Co., 4 5 7 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); see Flagg Bros., Inc. v. Brooks, 4 3 6 U.S. 149, 156, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978)." Id. Likewise, to proceed in a su it filed under Bivens, 2 the challenged actions must have been undertaken by federal o ffic ials acting under color of federal law whose actions are attributable to the government. A b e lla v. Rubino, 63 F.3d 1063, 1065 (11 th Cir. 1995); Dean v. Gladney, 621 F.2d 1331, 2. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). 2 2 Case 2:06-cv-00770-MHT-DRB Document 4 Filed 08/29/2006 Page 3 of 4 1 3 3 6 (5 th Cir. 1980), cert. denied, 450 U.S. 983 (1981). 3 Although a financial institution may ac t "`with the knowledge of and pursuant to'" applicable state and federal laws, Adickes v. S .H . Kress & Co., 398 U.S. 144, 162, n. 23, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), thereby "s a tis fy in g the first requirement, [a plaintiff] still must satisfy the second, whether the alleged ly unconstitutional conduct is fairly attributable to the State [or federal government]." A m e r ic a n Manufacturers, 526 U.S. at 50, 119 S.Ct. at 985. A financial institution such as Regions is not a person within the meaning of 42 U .S.C . 1983. Moreover, the actions about which Nelson complains were not committed b y a state or federal actor and such actions likewise clearly resulted from "merely private c o n d u c t" excluded from the reach of 1983 and Bivens. In light of the foregoing, the court c o n c lu d e s that the claims presented against the named defendant are frivolous and subject to summary dismissal in accordance with the provisions of 28 U.S.C. 1915(e)(2)(B)(i). CONCLUSION A c c o r d in gly , it is the RECOMMENDATION of the Magistrate Judge that this case b e dismissed with prejudice prior to service of process pursuant to the directives of 28 U.S.C. 1915(e)(2)(B)(i). It is further ORDERED that on or before September 11, 2006 the parties may file any objections to the Recommendation. Any objections filed must specifically identify the findings in the 3. Cases dealing with actions of defendants under 42 U.S.C. 1983 are equally applicable to Bivens claims. Abella, 63 F.3d at 1065. 3 3 Case 2:06-cv-00770-MHT-DRB Document 4 Filed 08/29/2006 Page 4 of 4 M a gis tra te Judge's Recommendation to which the party is objecting. Frivolous, conclusive o r general objections will not be considered by the District Court. The parties are advised th a t this Recommendation is not a final order of the court and, therefore, it is not appealable. F a ilu re to file written objections to the proposed findings and advisements in the M a gis tra te Judge's Recommendation shall bar the party from a de novo determination by the D is tric t Court of issues covered in the Recommendation and shall bar the party from a tta c kin g on appeal factual findings in the Recommendation accepted or adopted by the D istrict Court except upon grounds of plain error or manifest injustice. Nettles v. W a in wr ig h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d 3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, e n banc), adopting as binding precedent all of the decisions of the former Fifth Circuit h a n d e d down prior to the close of business on September 30, 1981. D o n e this 29 th day of August, 2006. /s / Delores R. Boyd UNITED STATES MAGISTRATE JUDGE 4

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