Coulibaly et al v. JP Morgan Chase Bank, N.A. et al

Filing 6

MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 2/9/2016. (c/m)(hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DR. TIEMOKO COULIBALY, et al.,
Plaintiffs,

:
:

v.

:

J.P. MORGAN CHASE BANK, N.A.,
et al.,

:

Civil Action No. GLR-15-3276
:
Defendants.
:
MEMORANDUM OPINION
THIS MATTER is before the Court on pro se Plaintiffs’, Dr.
Tiemoko Coulibaly and Dr. Fatou Gaye-Coulibaly, Complaint (ECF No.
1) and Motion to Proceed in Forma Pauperis (ECF No. 2).

Because

the Coulibalys appear indigent, their Motion to Proceed in Forma
Pauperis will be granted.

For the reasons that follow, however,

the Complaint will be dismissed.
I.
A.

BACKGROUND

The First and Second Actions
On December 16, 2010, the Coulibalys initiated an action in

this Court (the “First Action”), alleging wrongdoing associated
with the purchase and finance of their Silver Spring, Maryland
residence.1
1

Coulibaly v. J.P. Morgan Chase Bank, N.A., No. DKC-10-

Specifically, the Coulibaly’s asserted the following claims
in a sixty-three page complaint:
(1)
civil
conspiracy;
(2)
intentional
infliction
of
emotional
distress;
(3)
violations of the Fair Housing Act (“FHA”);
(4) additional violations of the FHA and
related violations of the Truth in Lending Act
(“TILA”), Real Estate Settlement Procedures

3517, 2011 WL 3476994 (D.Md. Aug. 8, 2011). In 2011, Judge Deborah
K. Chasanow dismissed, under Federal Rule of Civil Procedure
12(b)(6), all but one claim against J.P. Morgan Chase Bank, N.A.
(“Chase”); dismissed, under Rule 12(b)(6), all of the claims
against the other defendants; denied the Coulibalys’ motions for
sanctions, recusal, and reconsideration; and entered a scheduling
order.

Id.

In January 2012, Judge Chasanow referred the First Action to
Magistrate Judge Charles B. Day for discovery.
Day held a discovery hearing in March 2012.

Magistrate Judge

On September 7, 2012,

Judge Chasanow granted Chase’s Motion for Summary Judgment and
closed the case.

Coulibaly v. J.P. Morgan Chase Bank, N.A., No.

Act
(“RESPA”),
and
the
Equal
Credit
Opportunity Act (“ECOA”); (5) breach of
contract and “violation of [the]
Maryland
First–Time Home Buyer Closing Cost Reduction
Act”; (6) breach of contract and conversion
“of [the] house’s ownership”; (7) negligence
and
gross
negligence;
(8)
“malicious
violation” of the PMI contract; (9) “malicious
violation” of “HAMP Guidelines;” (10) unjust
enrichment resulting from “the bad terms of
HAMP modification”; (11) “malicious breach of
contract and conversion of Plaintives’s [sic]
money at the settlement”; (12) fraud, breach
of
contract,
blackmail,
and
conversion
relating
to
the
earnest
money;
(13)
misrepresentations in the property listing in
violation of the Lanham Act and RESPA; (14)
“misrepresentation and fraud” resulting in
“increased credit card debt”; and (15) fraud
resulting “in the cancellation of Plaintiff’s
presidential campaign.”
Coulibaly v. J.P. Morgan Chase Bank, N.A., No. DKC 10-3517, 2011 WL
2

DKC-10-3517, 2012 WL 3985285, at *11 (D.Md. Sept. 7, 2012). On May
1, 2013, the United States Court of Appeals for the Fourth Circuit
affirmed this Court’s orders in the First Action.

Coulibaly v. JP

Morgan Chase Bank, N.A., 526 F.App’x 255, 255 (4th Cir. 2013) (per
curiam).
The Coulibalys filed several motions following the Fourth
Circuit’s May 1, 2013 decision; this Court denied them all.
Coulibaly v. J.P. Morgan Chase Bank, N.A., No. DKC-10-3517, 2014 WL
992778, at *3 (D.Md. Mar. 13, 2014).

On October 20, 2014, the

Fourth Circuit affirmed the denials. Coulibaly v. JP Morgan Chase
Bank, N.A., 584 F.App’x 178, 178 (4th Cir. 2014) (per curiam).

In

January 2015, the Coulibalys sought to transfer venue of the closed
First Action to the United States District Court for the District
of Columbia, alleging judicial retaliation.

This Court denied the

Coulibalys’ Motion to Transfer Venue on January 29, 2015.
On February 12, 2015, the Coulibalys submitted a document to
the Clerk of the Court, captioned to be filed in the First Action,
but titled as a Complaint under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346(b)(1) (2012), against Judge Chasanow and
Magistrate

Judge

Day.

The

Coulibalys

complained

that

Judge

Chasanow and Magistrate Judge Day were motivated by reprisal in the
First

Action

and

their

orders

constituted

negligent, and unconstitutional acts.

3476994, at *4 (D.Md. Aug. 8, 2011).
3

discriminatory,

Because the Coulibalys

asserted a new cause of action and named new defendants, the Clerk
opened a new case (the “Second Action”), Coulibaly v. Chasanow, No.
TDC-15-0425 (D.Md. filed Feb. 12, 2015).

On February 27, 2015,

Judge Theodore D. Chuang dismissed, under Rule 12(b)(6), the Second
Action.

Coulibaly v. Chasanow, No. TDC-15-0425, 2015 WL 877786, at

*3 (D.Md. Feb. 27, 2015).
B.

The Coulibalys did not appeal.

The Present Action
On October 1, 2015, the Coulibalys filed a fifty-nine-page

Complaint in the United States District Court for the District of
Columbia (the “Present Action”), re-naming all the defendants in
the First and Second Actions, as well as Judge Chuang, the United
States, and Rosenberg & Associates, L.L.C.2,3,4

(ECF No. 1). They

also filed a Motion to Proceed in Forma Pauperis (ECF No. 2).
2

On

Although the Coulibalys name Rosenberg & Associates, L.L.C.
(“Rosenberg”) as a Defendant in the caption of their Complaint,
their Complaint contains no factual allegations against Rosenberg.
Indeed, the Coulibalys do not list Rosenberg in the “Parties”
section of their Complaint. (Compl. ¶¶ 19–28, ECF No. 1).
As
such, the Court will dismiss Rosenberg as a Defendant. See Weller
v. Dep't of Soc. Servs. for Balt., 901 F.2d 387, 397 (4th Cir.
1990).
3
Specially, the Coulibalys assert the following claims:
violation of the Maryland Mortgage Fraud Prevention Act, Md.Code
Ann., Real Prop. §§ 7–401, et seq., the Maryland Consumer
Protection Act, Md.Code Ann., Comm.Law §§ 13–101, et seq., and the
Maryland Protection of Homeowners in Foreclosure Act, Md.Code Ann.,
Real Prop. §§ 7–301, et seq.; fraud; negligence; gross negligence;
conversion; and tortious interference with contract (collectively,
the “Non-Judicial Claims”). They also assert claims against Judges
Chasanow and Chuang and Magistrate Judge Day for violating the FTCA
and 42 U.S.C. § 1985(3) (collectively, the “Judicial Claims”).
4
It is unclear from the Compliant which claims the Coulibalys
bring against the United States.
Liberally construing their
Complaint, the Court will assume the Coulibalys intended to also
4

October 26, 2015, the United States District Court for the District
of Columbia transferred the Present Action to this Court. (ECF No.
3).
II.
A.

DISCUSSION

Standard of Review
Because they seek to proceed in forma pauperis, the Court must

screen the Coulibalys’ Complaint.

See 28 U.S.C. § 1915(e)(2)(B)

(2012); Michau v. Charleston Cty., S.C., 434 F.3d 725, 728 (4th
Cir. 2006).

As part of its screening process, the Court may

consider whether the Coulibalys fail to state a claim on which
relief may be granted.

28 U.S.C. § 1915(e)(2)(B)(ii).

The standard for determining whether a plaintiff has failed to
state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) is the same as
the standard for reviewing a motion to dismiss pursuant to Rule
12(b)(6).

De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir. 2003).

Accordingly, the Coulibalys’ Complaint “must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)).

A claim is facially plausible “when the plaintiff pleads

factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).

“Threadbare recitals of the

assert the Judicial Claims against the United States.
5

elements of a cause of action, supported by mere conclusory
statements, [will] not suffice.”

Id. (citing Twombly, 550 U.S. at

555).
When screening the Coulibalys’ Complaint, the court must
construe

the

Complaint

in

the

light

most

favorable

to

the

Coulibalys, read the Complaint as a whole, and take the facts
asserted therein as true.

See Harrison v. Westinghouse Savannah

River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs.,
Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)).

Legal

conclusions, however, are not entitled to the assumption of truth.
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555).

Also,

because the Coulibalys are acting pro se, the Court must construe
their Complaint liberally.

Erickson v. Pardus, 551 U.S. 89, 94

(2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
B.

Analysis
1.

Non-Judicial Claims

The Court will dismiss the Coulibalys’ Non-Judicial Claims
because they are barred by res judicata.
Res judicata is a ground for dismissal under Rule 12(b)(6).
Davani v. Va. Dep’t of Transp., 434 F.3d 712, 720 (4th Cir. 2006).
A

Rule

12(b)(6)

dismissal

based

on

res

judicata

is

only

appropriate, however, when the basis for res judicata “clearly
appears on the face of the complaint.”

Theune v. U.S. Bank, N.A.,

No. MJG-13-1015, 2013 WL 5934114, at *3 (D.Md. Nov. 1, 2013)
6

(quoting Richmond, Fredericksburg & Potomac R.R. Co. v. Forst, 4
F.3d 244, 250 (4th Cir. 1993)).

Res judicata, also known as claim

preclusion, “bars a party from suing on a claim that has already
been litigated to a final judgment by that party . . . and
precludes the assertion by such part[y] of any legal theory, cause
of action, or defense which could have been asserted in that
action.”

Reid v. New Century Mortg. Corp., No. 8:12-02083-AW, 2012

WL 6562887, at *3 (D.Md. Dec. 13, 2012) (quoting Ohio Valley Envtl.
Coal. v. Aracoma Coal Co., 556 F.3d 177, 210 (4th Cir. 2009)).
For res judicata to apply, three elements must be shown: (1)
the parties in the current action are the same or in privity with
the parties in the previous action; (2) the claims presented in the
current action are identical to claims that were or could have been
litigated in the previous action; and (3) there was a final
judgment on the merits of the claims in the previous action.
Jacobs v. Venali, Inc., 596 F.Supp.2d 906, 913 (D.Md. 2009).

The

Fourth Circuit has adopted a transactional approach to identifying
claims subject to res judicata, under which “the appropriate
inquiry is whether the new claim arises out of the same transaction
or series of transactions as the claim resolved by the prior
judgment.”

Indus. Unlimited v. Viacom Entm’t Int’l, Inc., No. DKC

2005-0906, 2005 WL 1177931, at *2 (D.Md. May 18, 2005) (quoting
Meekins v. United Transp. Union, 946 F.2d 1054, 1058 (4th Cir.
1991)).

Dismissals for failure to state a claim under Rule
7

12(b)(6) and summary judgment are final judgments on the merits for
purposes of res judicata.

Frank v. Home Depot, U.S.A., Inc., 481

F.Supp.2d 439, 442 (D.Md. 2007); Armstrong v. Koury Corp., 16
F.Supp.2d 616, 619 (M.D.N.C. 1998), aff’d, 168 F.3d 481 (4th Cir.
1999).
The Coulibalys’ Complaint is far from a model of clarity—it is
rambling, muddled, and riddled with disjointed legal arguments and
duplicate causes of action.

What is clear on the face of their

Complaint, however, is that the Non-Judicial Claims for negligence,
gross negligence, fraud, conversion, and breach of contract are
identical to claims in the First and Second Actions.

As for the

other Non-Judicial Claims, the Coulibalys could have presented them
in their First and Second Actions because they all arise out of the
same transactions as the claims this Court resolved against the
Coulibalys

in

those

actions.

Moreover,

the

Rule

12(b)(6)

dismissals and summary judgment that this Court entered against the
Coulibalys in the First and Second Actions were final judgments on
the merits.

Thus, the Court finds the Non-Judicial Claims are

barred by res judicata and will dismiss them with prejudice.
2.

Judicial Claims
a.

FTCA Claims

The Court will dismiss the Coulibalys’ FTCA claims with
prejudice based on res judicata and judicial immunity.

8

Res judicata bars the Coulibalys’ FTCA claims against Judge
Chasanow and Magistrate Judge Day because Judge Chuang dismissed,
under Rule 12(b)(6), the Coulibalys’ FTCA claims against these
Judges in the Second Action.

Res judicata does not bar, however,

the Coulibalys’ FTCA claim against Judge Chuang because this is the
first opportunity for the Coulibalys to challenge Judge Chuang’s
conduct in dismissing the Second Action.

Nevertheless, Judge

Chuang is immune from civil liability because the Coulibalys do not
allege he acted outside his judicial capacity when dismissing the
Second Action.

King v. Myers, 973 F.2d 354, 356–57 (4th Cir. 1992)

(explaining that judges are entitled to absolute immunity from
civil suit unless they act outside their judicial capacity or in a
total absence of jurisdiction).
United States.

This immunity also extends to the

See Bush v. Blake, No. JFM-11-1410, 2011 WL

2311835, at *2 (D.Md. June 9, 2011) (citing Tinsley v. Widener, 150
F.Supp.2d

7,

12

(D.D.C.2001)).

Thus,

the

Court

finds

the

Coulibalys fail to state FTCA claims and will dismiss them with
prejudice.
b.

Section 1985 Claims

The Court will dismiss the Coulibalys’ § 1985(3) claims with
prejudice because the United States is not subject to liability and
the Coulibalys fail to sufficiently allege a single element of a §
1985(3) claim.

9

To

state

a

plausible

claim

for

relief

under

§

1985,

a

plaintiff must allege five elements:
(1) a conspiracy of two or more persons, (2)
who are motivated by a specific class-based,
invidiously discriminatory animus to (3)
deprive the plaintiff of the equal enjoyment
of rights secured by the law to all, (4) and
which results in injury to the plaintiff as
(5) a consequence of an overt act committed by
the
defendants
in
connection
with
the
conspiracy.
Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995) (citing Buschi
v. Kirven, 775 F.2d 1240, 1257 (4th Cir. 1985)).

“Mere conclusory

allegation of a conspiracy will not be sufficient to present a
claim under § 1985.”

Patterson v. Stogner, No. 0:10-2456-CMC-BM,

2010 WL 4822830, at *2 (D.S.C. Nov. 22, 2010) (citing Simmons, 47
F.3d at 1377).
The Coulibalys’ § 1985(3) claim against the United States
fails because “the United States is not a person within the meaning
of § 1985.”

Proffitt v. United States, 758 F.Supp. 342, 345

(E.D.Va. 1990).

As for the Coulibalys’ § 1985(3) claim against the

Judges, the Coulibalys allege only that the Judges conspired to
“protect” Judge Chasanow.

(Compl. ¶ 105, ECF No. 1).

Although

addressing the first element of a § 1985(3) claim, this allegation,
is

nothing

more

than

a

legal

conclusion

devoid

of

factual

enhancement that is not entitled to the assumption of truth.

What

is more, the Coulibalys completely fail to present allegations
regarding the second, third, fourth, and fifth elements of a §
10

1985(3) claim.

Accordingly, the Court finds the Coulibalys fail to

state § 1985(3) claims and will dismiss them with prejudice.5
III. CONCLUSION
For the foregoing reasons, the Coulibalys’ Complaint (ECF No.
1) is DISMISSED WITH PREJUDICE and their Motion to Proceed in Forma
Pauperis (ECF No. 2) is GRANTED.

A separate Order follows.

Entered this 9th day of February, 2016
/s/
_______________________________
George L. Russell, III
United States District Judge

5

Because the Coulibalys allege that the Judges conspired to
protect Judge Chasanow—a conspiracy that is not actionable under 42
U.S.C. § 1985(3)—the Court will not afford the Coulibalys an
opportunity to refile their § 1985(3) claim against the Judges at a
later date.
11