Jamison v. Union Bank

Filing 24

FINDINGS and RECOMMENDATIONS recommending that this action be dismissed for lack of subject matter jurisdiction signed by Magistrate Judge Kendall J. Newman on 4/30/15. F&R referred to Judge Morrison C. England, Jr. Objections to F&R due within fourteen days. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JEREMY L. JAMISON,

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No. 2:14-cv-1194 MCE KJN P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

UNION BANK, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.
§ 1983, and is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915.

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In the complaint, plaintiff complains about actions taken by a corporation and its

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employee relating to a banking transaction. The complaint, however, does not allege a basis for

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subject matter jurisdiction in this court. The bank and its employee are not state actors as

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required under 42 U.S.C. § 1983. Plaintiff was directed to show cause why this action should not

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be dismissed based on his failure to establish federal subject matter jurisdiction.

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In response to the order to show cause, plaintiff appears to contend that because the Union

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Bank is insured by the FDIC, the actions of Union Bank and its employee violated plaintiff’s

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constitutional rights. Plaintiff claims funds were taken from his account and his account closed

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once the bank learned that plaintiff “had been arrested for suspicion of forgery.” (ECF No. 22 at

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2.) Plaintiff states that the bank then entered plaintiff’s name in a “worldwide data bank that
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targets individuals for sketchy banking practices, making it hard to bank, receive credit, get loans,

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etc.” (ECF No. 22 at 2.) Plaintiff claims that the charge of forgery was dropped, but that plaintiff

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was left with a smear on his banking record. Plaintiff alleges that the bank acted with deliberate

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indifference, discriminated against plaintiff based on his race, and violated his right to equal

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protection. Plaintiff appended portions of the civil rights statute, 42 U.S.C. § 1983. (ECF No. 22

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at 4-8.)

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A federal court is a court of limited jurisdiction, and may adjudicate only those cases

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authorized by the Constitution and by Congress. Kokkonen v. Guardian Life Ins. Co.,

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511 U.S. 375, 377 (1994). The basic federal jurisdiction statutes, 28 U.S.C. §§ 1331 & 1332,

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confer “federal question” and “diversity” jurisdiction, respectively. Federal question jurisdiction

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requires that the complaint (1) arise under a federal law or the U.S. Constitution, (2) allege a

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“case or controversy” within the meaning of Article III, § 2 of the U.S. Constitution, or (3) be

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authorized by a federal statute that both regulates a specific subject matter and confers federal

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jurisdiction. Baker v. Carr, 369 U.S. 186, 198 (1962). “A case ‘arises under’ federal law either

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where federal law creates the cause of action or ‘where the vindication of a right under state law

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necessarily turn[s] on some construction of federal law.’” Republican Party of Guam v.

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Gutierrez, 277 F.3d 1086, 1088-89 (9th Cir. 2002) (modification in original) (citing Franchise

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Tax Bd. v. Constr. Laborers Vacation Trust, 463 U.S. 1, 8-9 (1983)). “[T]he presence or absence

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of federal-question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides

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that federal jurisdiction exists only when a federal question is presented on the face of the

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plaintiff’s properly pleaded complaint.” Provincial Gov’t of Marinduque v. Placer Dome, Inc.,

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582 F.3d 1083, 1091 (9th Cir. 2009). To invoke the court’s diversity jurisdiction, a plaintiff must

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specifically allege the diverse citizenship of all parties, and that the matter in controversy exceeds

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$75,000. 28 U.S.C. § 1332(a); Bautista v. Pan American World Airlines, Inc., 828 F.2d 546, 552

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(9th Cir. 1987). A case presumably lies outside the jurisdiction of the federal courts unless

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demonstrated otherwise. Kokkonen, 511 U.S. at 376-78. Lack of subject matter jurisdiction may

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be raised at any time by either party or by the court. Attorneys Trust v. Videotape Computer

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Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).
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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. Section 1983 provides a cause of action for the violation of a plaintiff's

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constitutional or other federal rights by persons acting under color of state law. Nurre v.

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Whitehead, 580 F.3d 1087, 1092 (9th Cir. 2009); Long v. County of Los Angeles, 442 F.3d 1178,

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1185 (9th Cir. 2006).

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Here, plaintiff has again failed to demonstrate that Union Bank or its employees were

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acting under color of state law. Purely private conduct is not actionable under 42 U.S.C. § 1983.

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Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999). Although plaintiff now refers to

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race discrimination and equal protection, he has not identified proper defendants for such claims.

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Plaintiff fails to allege that the defendants were state actors or that they were otherwise acting

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under color of law. See Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir.

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1999) (The party charged with a constitutional deprivation under § 1983 must be a person who

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may fairly be said to be a governmental actor) (citation and quotations omitted). Section “1983

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excludes from its reach merely private conduct, no matter how discriminatory or wrong.” Id.

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(citing American Mfrs., 526 U.S. at 50 (citation and internal quotation marks omitted)).

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Furthermore, plaintiff fails to allege facts showing how defendants’ actions resulted in the

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deprivation of any constitutional right. The fact that Union Bank is insured by the FDIC does not

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demonstrate that defendants were acting under color of state law. Such insurance relationship

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also does not provide an alternative source of federal subject matter jurisdiction. Plaintiff alleges

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no facts demonstrating that the parties are diverse.

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Despite being granted a second opportunity to allege facts demonstrating federal subject

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matter jurisdiction exists, plaintiff has failed to do so. Thus, this action should be dismissed for

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lack of subject matter jurisdiction.

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of
subject matter jurisdiction.
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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: April 30, 2015

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/jami1194.fsc

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