Hendrix v. Barclays Bank Delaware

Filing 10

MEMORANDUM. Signed by Judge Sue L. Robinson on 11/21/14. (mas)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TERRY C. HENDRIX,
a/k/a Terrance C. Hendrix,
Plaintiff,

v.
BARCLAYS BANK DELAWARE,
Defendant.

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) Civ. No. 14-1214-SLR
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MEMORANDUM
1. Introduction. Plaintiff Terry C. Hendrix ("plaintiff'), an inmate at the Kit
Carson Correctional Center, Burlington, Colorado, proceeds prose and has been
granted in forma pauperis status. He filed this complaint alleging violations of the
Securities Act of 1933. (D.I. 3)
2. Standard of Review. A federal court may properly dismiss an action sua
sponte under the screening provisions of 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) if
"the action is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief."
Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013); see also 28 U.S.C. § 1915(e)(2) (in
forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress
from a governmental defendant); 42 U.S.C. § 1997e (prisoner actions brought with
respect to prison conditions). The court must accept all factual allegations in a
complaint as true and take them in the light most favorable to a pro se plaintiff. Phillips
v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S.
89, 93 (2007). Because plaintiff proceeds prose, his pleading is liberally construed and

his complaint, "however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations
omitted).
3. An action is frivolous if it "lacks an arguable basis either in law or in fact."

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and
§ 1915A(b)(1 ), a court may dismiss a complaint as frivolous if it is "based on an
indisputably meritless legal theory" or a "clearly baseless" or "fantastic or delusional"
factual scenario. Neitzke, 490 at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir.
1989); see, e.g., Deutsch v. United States, 67 F.3d 1080, 1091-92 (3d Cir. 1995)
(holding frivolous a suit alleging that prison officials took an inmate's pen and refused to
give it back).
4. The legal standard for dismissing a complaint for failure to state a claim
pursuant to§ 1915(e)(2)(8)(ii) and§ 1915A(b)(1) is identical to the legal standard used
when ruling on Rule 12(b)(6) motions. Tourscherv. McCullough, 184 F.3d 236, 240 (3d
Cir. 1999) (applying Fed. R. Civ. P. 12(b)(6) standard to dismissal for failure to state a
claim under§ 1915(e)(2)(8)). However, before dismissing a complaint or claims for
failure to state a claim upon which relief may be granted pursuant to the screening
provisions of 28 U.S.C. §§ 1915 and 1915A, the court must grant plaintiff leave to
amend his complaint unless amendment would be inequitable or futile. See Grayson v.

Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
5. A well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell At/. Corp. v. Twombly,

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550 U.S. 544 (2007). The assumption of truth is inapplicable to legal conclusions or to
"[t]hreadbare recitals of the elements of a cause of action supported by mere
conclusory statements." Iqbal, 556 U.S. at 678. When determining whether dismissal
is appropriate, the court must take three steps: "(1) identify[] the elements of the claim,
(2) review[] the complaint to strike conclusory allegations, and then (3) look[] at the
well-pleaded components of the complaint and evaluat[e] whether all of the elements
identified in part one of the inquiry are sufficiently alleged." Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011 ). Elements are sufficiently alleged when the facts in the
complaint "show" that the plaintiff is entitled to relief. Iqbal, 556 U.S. at 679 (quoting
Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a "context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense." Id.
6. Discussion. Plaintiff alleges that defendant Barclays Bank of Delaware
("Barclays") violated the Securities Act of 1933 when it "invested in, facilitated,
accepted, bought or sold, held in possession, tendered, built, [and] constructed
mortgage backed securities." (D.I. 3) The complaint contains conclusory language,
does not indicate when or where the alleged wrongful acts occurred, and contemplates
million and billion dollar fines. Plaintiff "offers" to settle the matter out of court pursuant
to "federal law executive order #12778." (Id.)
7. To the extent that plaintiff seeks to bring a private right of action, the court
finds the claim frivolous, fanciful, and without any basis in law. See Neitzke, 490 U.S.
at 325. To the extent that plaintiff seeks to impose criminal liability upon Barclays, he

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lacks standing to proceed. See Allen v. Administrative Office of Penn. Courts, 270 F.
App'x 149, 150 (3d Cir. 2008) (unpublished); see United States v. Friedland, 83 F.3d
1531, 1539 (3d Cir. 1996) ("[T]he United States Attorney is responsible for the
prosecution of all criminal cases within his or her district."). The decision of whether to
prosecute, and what criminal charges to bring, generally rests with the prosecutor. See
United States v. Batchelder, 442 U.S. 114, 124 (1979). Accordingly, the complaint will
be dismissed as frivolous pursuant to pursuant to 28 U.S.C. § 1915(e)(2)(8)(i) and
§ 1915A(b)(1).
8. Conclusion. For the above reasons, the court will dismiss the complaint for
as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(8)(i) and§ 1915A(b)(1). The court finds
amendment futile. A separate order shall issue.

Date: November ..t!_, 2014

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