Jimenez v. Wells Fargo, National Association et al

Filing 34

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 4/4/2017. (c/m 04/04/2017 jf3s, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANTHONY LOLIN JIMENEZ, SR.#122076 *
#3B5239
*
Plaintiff
*
v.
Civil Action No. PWG-16-3721
*
WELLS FARGO, NATIONAL
ASSOCIATION,
*
KATHLEEN DEAN, Remediation Analyst,
*
Defendants
***
MEMORANDUM OPINION
Self-represented Plaintiff Anthony Lolin Jimenez, Sr. is suing Defendants Wells Fargo
Bank, N.A. (“Wells Fargo”) and its employee Kathleen Dean. Defendants move to dismiss the
Amended Complaint, ECF No. 18, pursuant to Federal Rule 12(b)(6) for failure to state a claim
upon which relief can be granted. ECF No. 19. Jimenez filed a “Response and Motion to Strike
Defendants[’] Motion to Dismiss Amended Complaint Pursuant to F.R.C.P. 12(a)(1)[,] (f).” ECF
No. 24. Defendants filed a Reply. ECF No. 25. A hearing is not necessary. See Loc. R. 105.6.
Because Plaintiff fails to state a claim, his Amended Complaint will be dismissed.
Background
Jimenez is incarcerated at the Crowley County Correctional Facility (“CCCF”) in Olney
Springs, Colorado.1 On November 14, 2016, Jimenez filed a Complaint against Wells Fargo and
Dean, claiming that Defendants improperly refused to give him access to various certificates

1

Jimenez attached to the original Complaint a copy of his judgment of conviction in Colorado v.
Jimenez, Case No. D0602000CR000178 (Dt. Court of Colorado, Teller County). ECF No. 1-3.
In that case, Jimenez was convicted on March 25, 2004 after a jury trial of second degree murder
and related offenses and sentenced to a total of 54 years of imprisonment. Id.; see Am. Compl.
2, ¶ 5(a).

from a mortgage-backed security trust in which he alleges he has an interest, in violation of the
Privacy Act of 1974, 5 U.S.C. § 552a. ECF No. 1. Defendants moved to dismiss, arguing, inter
alia, that § 552a “is not actionable against a non-governmental agency.” ECF No. 7. Jimenez
opposed the motion, ECF No. 14, and filed his Amended Complaint. I struck Defendants’
original motion to dismiss in light of their Motion to Dismiss Plaintiff’s Amended Complaint.
ECF No. 23.
In the Amended Complaint, Jimenez abandons his Privacy Act claim and instead raises
claims of tort violations as well as “other undefined ‘per se’ infractions, etc.” Am. Compl. 7. He
alleges that he has “determined and identified a Security CUSIP[2] related to his criminal case,
D0602000CR000178.”

Id. at 5, ¶ 5.b. Jimenez contends “the transaction that encumbered

CUSIP 316345602 consisted of mortgage/asset back securities either publicly sold or privately
traded.” Id. ¶ 5.c.
Jimenez maintains that he requested information from Wells Fargo, the alleged custodian
of the record, but Kathleen Dean denied his requests, “claiming privacy/privilege right.” Id. In
support of his original Complaint, Jimenez filed two emails that Dean sent in response to his
request, both asking him to provide a specific address and the borrower’s name. Id; ECF No. 16.

Jimenez responded that he wanted the “‘registration statement; and the original issued

certificate, QUSIP [sic] 316345602,” to which Dean replied that the certificates were unavailable
and registration statements are private documents. Am. Compl. 5, ¶ 5.c.
Jimenez’s prolix and disjointed Amended Complaint and other filings all but defy
comprehension. But, the Court recognizes its obligation to attempt (if possible) to construe the

2

CUSIP is the acronym for the Committee on Uniform Securities Identification Procedures, a
system used to identify securities including registered stocks and U.S. government and municipal
bonds. See https://www.sec.gov/answers/cusip.htm.
2

pleadings of self-represented litigants like Jimenez liberally. See, e.g., Erickson v. Pardus, 551
U.S. 89, 94 (2007). As best as I can discern, Jimenez alleges that Defendants are liable under
various imagined causes of action because the District Attorney’s Office in Colorado or the
Fourth Judicial District of Colorado “Mortgaged” his criminal case, “giving rise to an
undisclosed debt obligation, default, judgment, foreclosure, lien” that “was converted into a
Mortgage Backed Security then sold in the Pooling & Servicing Agreement” to which Wells
Fargo was a party. Am. Compl. 8, ¶ 5; Notice of Claim 3, ECF No. 18-4. Specifically, “Wells
Fargo, National Association [sic] was the Securities Administrator/Master Servicer to the
transaction reflected by the Pooling and Servicing Agreement recorded with the SEC under
COMM NO. 333-115122, November 1, 2004” Am. Compl. 5, ¶ 5.g. He claims that two Form
1099-Bs3 were filed in relation to that financial security, listing him as the “payor” and
“receiver,” but he was not aware of, nor did he authorize the security or the filings. Id. at 5–6,
¶ 5.c–h. He views these alleged financial transaction as part of “the schemes of the Defendants
and their co-conspirators,” and alleges that “Defendants and their co-conspiractors are directly or
indirectly responsible, in-whole or in-part, for the Plaintiff’s liberty being stolen then marketed

3

The Internal Revenue Service requires that “[a] broker or barter exchange” file a Form 1099-B
for each person:
 For whom, they sold stocks, commodities, regulated futures contracts, foreign
currency contracts, forward contracts, debt instruments, options, securities futures
contracts, etc., for cash,
 Who received cash, stock, or other property from a corporation that the broker
knows or has reason to know has had its stock acquired in an acquisition of
control or had a substantial change in capital structure reportable on Form 8806,
or
 Who exchanged property or services through a barter exchange.
See Form 1099-B, Proceeds From Brother and Barter Excvhange Transactions, https://www.irs.
gov/uac/about-form-1099b.
Jimenez submitted a document that purports to be an IRS Form 1099-B for the tax year
2013. This document identifies Jimenez as both a payer and recipient, and provides no evidence
in support of Jimenez’s allegations. ECF No. 13-2.
3

for financial gain and other benefits, for all those involved except the Plaintiff.” Id. at 5–6,
¶ 5.g–i; 10, ¶ 13. The very notion that Defendants or their alleged co-conspirators collateralized
his criminal proceedings is not only implausible; it is preposterous. Based on these nonsensical
allegations, Jimenez raises claims of “deceptive trades, negligence, negligence per se, breach of
duty, breach of fiduciary duty, civil conspiracy,” and “other undefined ‘per se’ infractions, etc.”
Id. at 7. In his Response, Jimenez clarifies that his Amended Complaint is not “based on
personal injury,” but rather is “a contract issue [and the absence thereof] resulting in a deceptive
trade practice and possible personal injury.” Pl.’s Resp. 2, ¶ 4 (emphasis and brackets in
original).
As redress, Jimenez asks this Court: (1) to order the U.S. Marshal to take custody of the
alleged “mortgage file”; (2) to order Defendants to “produce the explicit contract authorizing the
business relationship between [Jimenez] and WELLS FARGO, N.A. and/or their coconspirators”; and (3) to order Defendants to reimburse him for “twice the face value of
instrument CUSIP . . . , and all of the proceeds that they have received including the maximum
allowed interest rate by law,” in addition to $50 million for loss of life, liberty and property.
Am. Compl. 11. In a word, Plaintiff’s claims are simply humbug.
Motion to Strike
Jimenez moves to strike Defendants’ motion pursuant to Rule 12(a) and (f), contending
that it is “immaterial, . . . insufficient,” “misleading and distractive.” Pl.’s Resp. 1. To the
contrary, Defendants’ motion and supporting memorandum succinctly state their arguments in
support of dismissal. I will deny Jimenez’s motion to strike.

4

Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes dismissal of a complaint
if it fails to state a claim upon which relief can be granted. Fed.R.Civ. P. 12(b)(6). The purpose
of Rule 12(b)(6) is “‘to test the sufficiency of a complaint’ and not to ‘resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.’” Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (quoting Edwards v. City of Goldsboro, 178
F.3d 231, 243 (4th Cir. 1999)); see also Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66
(4th Cir. 2016). The sufficiency of a complaint is assessed by reference to the pleading
requirements of Rule 8(a)(2), which provides that a complaint must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
To survive a motion under Rule 12(b)(6), a complaint must contain facts sufficient to
“state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). Under the plausibility standard, a
complaint must contain “more than labels and conclusions” or a “formulaic recitation of the
elements of a cause of action.” Twombly, 550 U.S. at 555; see also Painter’s Mill Grille, LLC v.
Brown, 716 F.3d 342, 350 (4th Cir. 2013) (“It is now well established that mere conclusory and
speculative allegations are not sufficient to withstand a motion to dismiss.”).
In reviewing a Rule 12(b)(6) motion, a court “must accept as true all of the factual
allegations contained in the complaint.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc.,
637 F.3d 435, 440 (4th Cir. 2011) (quoting Erickson, 551 U.S. at 94). From those allegations, it
must “draw all reasonable inferences [from those facts] in favor of the plaintiff.” Id. (quoting
Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009)). While a
court must accept as true all the factual allegations contained in the complaint, legal conclusions

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drawn from those facts are not afforded such deference. Iqbal, 556 U.S. at 678 (stating that
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice” to plead a claim); see A Society Without a Name v. Virginia, 655 F.3d
342, 346 (4th. Cir. 2011).
A pro se litigant’s complaint should not be dismissed unless it appears beyond doubt that
the litigant can prove no set of facts in support of his claim that would entitle him to relief.
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). However, liberal construction does not
absolve Plaintiff from pleading plausible claims. See Holsey v. Collins, 90 F.R.D. 122, 128 (D.
Md.1981) (citing Inmates v. Owens, 561 F.2d 560, 562–63 (4th Cir. 1977)).
It is neither unfair nor unreasonable to require a pleader to put his
complaint in an intelligible, coherent, and manageable form, and his failure to do
so may warrant dismissal. District courts are not required to be mind readers, or to
conjure questions not squarely presented to them.
Harris v. Angliker, 955 F.2d 41, 1992 WL 21375, at * 1 (4th Cir. 1992) (per curiam) (internal
citations omitted).
Discussion
Defendants move for dismissal of the Amended Complaint on the following grounds: (1)
it names the wrong parties as Defendants; and (2) it fails to state a claim. Defs.’ Mem. 5, 6.
Wrong Defendants
Jimenez maintains that CUSIP 316345602 is a mortgage or other instrument that was
created and connected with his criminal case. He bases this assertion on the results of a thirdparty vendor search, see Compl. 2; Am. Compl. 5, ¶ 5.b, which he attached in support of his
initial Complaint and referenced in the Amended Complaint. CUSIP Results, ECF No. 1-4; see
Am. Compl. 5, ¶ 5.b. The attachment shows that “CUSIP 316345602 refers to a Fidelity
Balanced K Fund (ticker symbol FBAKX), a mutual fund under the control of Fidelity, not Wells
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Fargo.” Defs.’ Mem. 5; see CUSIP Results. Where as here, allegations in the Complaint
conflict with an attached written instrument, “the exhibit prevails.” Fayetteville Investors v.
Commercial Builders, 936 F.2d 1462, 1465 (4th Cir. 1991). Plaintiff also attached a Pooling and
Servicing Agreement (“PSA”) to which Wells Fargo is a party and in which Wells Fargo is
identified as “Master Servicer and Securities Administrator.” ECF No. 1-5. He argues that
“[t]his defendant along with co-conspirators, collectively engaged in a contract agreement to
purchase unlawfully created debt instruments [such as] CUSIP 316345602.” Pl.’S Resp. 5. But,
the PSA, which prevails over Plaintiff’s allegations, see Fayetteville Investors, 936 F.2d at 1465,
does not list Fidelity as a party. Consequently, Plaintiff’s claim that Wells Fargo incurred
liability with respect to how it handled CUSIP 316345602, when there is no uncontradicted
allegation showing that Wells Fargo was involved with CUSIP 316345602 at all, is not
“plausible on its face.” See Twombly, 550 U.S. at 570. Jimenez’s claims are not asserted
sufficiently against Wells Fargo or it employee Kathleen Dean and are subject to dismissal.
Failure to State a Claim
Despite having had the opportunity to amend, Plaintiff’s Amended Complaint insufficient
to give Defendants notice of “fair notice of what the plaintiff’s claim is and the grounds upon
which it rests.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (internal quotation marks
omitted). In particular, it purports to raise tort claims and “other undefined ‘per se’ infractions”
based on bare and conclusory phantasmagorical allegations of fact and legal conclusions.
1. “Deceptive Trades” Claim
Insofar as Jimenez seeks to raise a claim of “deceptive trades,” he does not identify the
law, statute, or case precedent on which his claim is premised. He asserts that an instrument
related to his criminal case was created by an unauthorized third party (identified in an

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attachment to his pleadings as the District Attorney’s Office in Colorado and in the Amended
Complaint as the Fourth Judicial District of Colorado) and that Wells Fargo was the
administrator or custodian of that instrument. This is nonsense. He seemingly contends that
Wells Fargo committed “deceptive trades” because “he did not authorize any third party to act on
his behalf for purposes of commerce, trade, etc.” Am. Compl. 6, ¶ 5.i. Of import, Jimenez does
not allege that Wells Fargo created the purported instrument and, as discussed above, attaches a
document showing that CUSIP 316345602 is not in a Wells Fargo fund. Further, the document
he attaches to show that Wells Fargo manages CUSIP 316345602 does not support that
allegation.

Consequently, Jimenez fails to state a claim of “deceptive trades” against

Defendants.
2. Neglience Claim
Although it is unclear where all of the alleged violations took place, the allegations
against Defendants arise, at least in part, from Wells Fargo’s communications with Jimenez
while Wells Fargo was located in Maryland. Am. Compl. 2, ¶¶ 2–3; 5, ¶ 5.c. Under Maryland
law, the elements of a negligence claim are: “(1) that the defendant was under a duty [to the
plaintiff], (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or
loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.”
Lara v. Suntrust Mortg. Inc., No. DKC-16-0145, 2016 WL 3753155, at *5 (D. Md. July 14,
2016) (alterations in original) (quoting Chicago Title Ins. Co. v. Allfirst Bank, 905 A.2d 366, 378
(Md. 2006)). Because CUSIP 316345602 does not refer to a Wells Fargo fund and the PSA does
not show that Wells Fargo had a role in its management, Jimenez fails to establish a duty owed
to him by Defendants. Moreover, to recover under a negligence claim in Maryland, the resultant
injury must be personal injury, not economic loss. See Roy v. Ward Mfg., LLC, No. RDB-13-

8

3878, 2014 WL 4215614, at *4 (D. Md. Aug. 22, 2014) (“A plaintiff alleging only … economic
loss[] is generally barred from bringing his claim under a products liability or any other type of
tort theory. ‘Under the economic loss rule, courts generally will not permit negligence claims
that allege only economic loss.’” (quoting Nat’l Labor College, Inc. v. Hillier Group
Architecture N.J., Inc., 739 F. Supp. 2d 821, 832 (D. Md. 2010))). Plaintiff concedes that he has
not incurred any personal injury, and that the case is based on “possible personal injury.” See
Pl.’s Resp. 2, ¶ 4. Plaintiff fails to state a claim in negligence. See id.
3. Negligence Per Se Claim
Under Maryland law, the elements of a negligence per se claim are:
1) the violation of a statute designed to protect a specific class of persons; 2) that
plaintiff is a member of this class of persons; 3) that the harm suffered by plaintiff
is of the type that the statute was intended to protect against; and 4) that the
violation was the proximate cause of the plaintiff’s injuries.
Essem v. Sone, No. PWG-14-113, 2014 WL 4182615, at *3–4 (D. Md. Aug. 19, 2014) (quoting
Hart v. A.C.E. Taxi, 442 F. Supp. 2d 268, 270 (D. Md. 2006) (citing Brooks v. Lewin Realty III,
Inc., 835 A.2d 616, 621 (Md. 2003))). Plaintiff fails to identify any statute designed to protect a
class of people to which he belongs or that is designed to protect against the harm that Plaintiff
allegedly suffered. See id. Therefore, he fails to state a claim for negligence per se. See id.
4. Breach of Duty and Breach of Fiduciary Duty Claims
Jimenez appears to base his breach of duty and breach of fiduciary duty claims on his
contention that Wells Fargo “had a fiduciary duty to the named party on the debt instrument
[Plaintiff], prior to the instrument’s conversion, to verify these documents were in the file” and
Wells Fargo “negligently or intentionally disregarded the absence of these documents as a
common practice for the ultimate purposes of receiving the financial reward reflected on the face
of the instrument.” Am. Compl. 8, ¶ 4. Jimenez’s assertion that the District Attorney’s Office in
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Colorado or the Fourth Judicial District of Colorado created an instrument that related to his
criminal case and then transferred it to a residential mortgage trust that was administered by
Wells Fargo is not only unsubstantiated by any of the documents he attaches that reference the
instrument, but is on its face implausible.
Even if it were possible to discern concrete facts from the morass of Jimenez’s filings
(which it is not), they would not give rise to any fiduciary duty that Defendants, as a bank, owed
Jimenez. “[A]s the Fourth Circuit has noted, ‘banks typically do not have a fiduciary duty to
their customers.’” Walsh v. Bank of N.Y. Mellon, No. GJH-15-00934, 2017 WL 239367, at *5
(D. Md. Jan. 19, 2017) (quoting Spaulding v. Wells Fargo Bank, N.A., 714 F.3d 769, 778-79 (4th
Cir. 2013)); see also Agomuoh v. PNC Fin. Servs. Grp., No. GJH-16-1939, 2017 WL 657428, at
*8 (D. Md. Feb. 16, 2017) (“[B]anks do not owe a fiduciary duty to their customers.”). Rather,
“[i]t is well established that ‘the relationship of a bank to its customer in a loan transaction is
ordinarily a contractual relationship between debtor and creditor and is not fiduciary in nature.”
Walsh, 2017 WL 239367, at *5 (quoting Spaulding, 714 F.3d at 778-79 (quoting Kuechler v.
Peoples Bank, 602 F. Supp. 2d 625, 633 (D. Md. 2009))). And, while exceptions exist, “[c]ourts
have been exceedingly reluctant to find special circumstances sufficient to transform an ordinary
contractual relationship between a bank and its customer into a fiduciary relationship or to
impose any duties on the bank not found in the loan agreement.” Id. (quoting Spaulding, 714
F.3d at 778-79).
The Maryland Court of Special Appeals has described only four special
circumstances where a lender may become a fiduciary for the borrower. These
special circumstances exist where the lender: “(1) took on any extra services on
behalf of [the borrowers] other than furnishing ... money ...; (2) received a greater
economic benefit from the transaction other than the normal mortgage; (3)
exercised extensive control ...; or (4) was asked by [the borrowers] if there were
any lien actions pending.” Id.

10

Id. (quoting Polek v. J.P. Morgan Chase Bank, N.A., 36 A.3d 399, 418 (Md. 2012) (quoting
Parker v. Columbia Bank, 604 A.2d 521, 533 (Md. Ct. Spec. App. 1992))). Jimenez does not
allege any of these “special circumstances,” and therefore Defendants did not owe Plaintiff a
fiduciary duty. See id. Consequently, Jimenez fails to state a claim for breach of fiduciary duty.
See id.
5. § 1981 claim
Plaintiff states that he brings this action pursuant to 42 U.S.C. § 1981. Am. Compl. 2,
¶ 4. Section 1981(a) provides:
All persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, licenses, and exactions of every
kind, and to no other.
42 U.S.C. § 1981(a). To state a claim for “discrimination under 42 U.S.C. § 1981 in the context
of goods and services,” such as those that a bank provides, a plaintiff must allege that
(1) he is a member of a protected class; (2) he sought to enter into a contractual
relationship with the defendant; (3) he met the defendant’s ordinary requirements
to pay for and to receive goods or services ordinarily provided by the defendant to
other similarly situated customers; and (4) he was denied the opportunity to
contract for goods or services that was otherwise afforded to white customers.
Boardley v. Household Fin. Corp. III, 39 F. Supp. 3d 689, 710 (D. Md. 2014) (quoting Painter’s
Mill Grille, 2012 WL 576640, at *6 (quoting Williams v. Staples, Inc., 372 F.3d 662, 667 (4th
Cir. 2004)); see Zeno v. Chevy Chase Bank, No. PJM–08–2236, 2009 WL 4738077, at *1–2 (D.
Md. Dec. 4, 2009) (applying elements in context of bank’s alleged refusal to open account for
plaintiffs). Plaintiff does not allege that he is a member of a protected class. Nor does he allege
that he sought to enter into a contract with Defendants. Rather, he states explicitly that “[h]e was
never made aware of any nor did he ever contract or agree to (explicit or implied) with any of the
11

identified interested parties … including ‘WELLS FARGO, NATIONAL ASSOCIATION.’”
Am. Compl. 6, ¶ 5.h. He insists that “[t]he asset/mortgage file to CUSIP 316345602 was/is
deficient by the absence of any contracts, agreements, affidavits, judgments, invoices,
indentures, notices, etc[.], signed or authorized by the Plaintiff.” Id. at 4, ¶ 4. Thus he fails to
state a claim under § 1981. See Boardley, 39 F. Supp. 3d at 710.
6. Civil Conspiracy Claim
Jimenez avers that Wells Fargo conspired when it “consciously chose to continue the
deceptive trade by filtering the fraudulent instrument using their superior knowledge in the
administration of banking to hide the security in a ‘Pool’ of legit instruments,” and that “Wells
Fargo, N.A. willingly with full knowledge of all the circumstances connected to instrument
CUSIP 316345602, joined this commercial venture with all of the named interested parties
[identified in Section B of the Amended Complaint]. Am. Compl. 8, ¶¶ 5-6.
To state a claim for civil conspiracy, Plaintiff must allege: “1) A confederation of two or
more persons by agreement or understanding; 2) some unlawful or tortious act done in
furtherance of the conspiracy or use of unlawful or tortious means to accomplish an act not in
itself illegal; and 3) actual legal damage resulting to the plaintiff.” Neto v. Rushmore Loan Mgmt.
Servs., Inc., No. DKC-16-1056, 2017 WL 896890, at *6 (D. Md. Mar. 7, 2017) (quoting
Windesheim v. Larocca, 116 A.3d 954, 975 (Md. 2015)). Significantly, “[c]onspiracy is not a
separate tort capable of independently sustaining an award of damages in the absence of other
tortious injury to the plaintiff.” Id. (quoting Haley v. Corcoran, 659 F. Supp. 2d 714, 726 (D.
Md. 2009) (citing Alleco Inc. v. The Harry & Jeanette Weinberg Foundation, Inc., 340 Md. 176,
189 (1995))). Because Plaintiff fails to state a claim under any of his other counts, Plaintiff’s
civil conspiracy claim fails as well. Se id.; Clark v. Md. Dep’t of Pub. Safety & Corr. Servs., 247

12

F. Supp. 2d 773, 777 (D. Md. 2003) (concluding that the plaintiff’s “state law claim for civil
conspiracy must fail” because he “failed to state a claim for any substantive torts”).
“Three Strikes Rule”
Jimenez is proceeding in forma pauperis. ECF No. 17. The in forma pauperis statute
provides that a prisoner may not bring a civil action without complete prepayment of the
appropriate filing fee if the prisoner has brought, on three or more occasions, an action or appeal
in a federal court that was dismissed as frivolous, as malicious, or for failure to state a claim
upon which relief may be granted, unless the prisoner is in “imminent danger of serious physical
injury.” 28 U.S.C. § 1915(g). Jimenez is incarcerated and for the reasons stated above, his
Complaint fails to state a claim upon which relief may be granted and will be dismissed.
Accordingly, a “strike” will be assigned to Jimenez pursuant to 28 U.S.C. § 1915(g).
This is at least the second “strike” assigned to Jimenez under this provision. See Order &
Jmt. in Jimenez v. Fourth Judicial District Attorney’s Office, et al., No. 16-1239 (10th. Cir.
2016), ECF No. 1-8. In that case, Jimenez alleged similar facts4 and the United States District
Court for the District of Colorado dismissed his action as frivolous. Id. at 3. and the Tenth
Circuit affirmed on appeal, finding that he failed to allege sufficient facts to connect the security
to his criminal case. Id. at 7.
4

In that case, Jimenez alleged that “various Colorado officials generated and sold financial
securities based on his criminal case.” Jimenez, No. 16-1239, slip op. at 3. Specifically, he
“claim[ed] that ‘the Fourth Judicial District … took out a mortgage loan[] for prosecution’ of the
charges against him, and then ‘converted [Jimenez] into the principal obligor/surety of the loan
that inevitably defaulted,’” and as a result “there [was] a publicly-traded security that he
believe[d] [was] ‘associated’ with his criminal case.” Id. at 6-7. The District of Colorado
“dismissed Jimenez’s action as frivolous,” and on appeal, the Tenth Circuit affirmed the
dismissal, concluding that, even though Jimenez “put forth sufficient facts that a security does
exist with the SEC identification number he has identified, he failed to allege any facts
connecting that security to his case, other than stating broadly that he discovered it was
‘associated.’” Id. at 3, 7.
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Conclusion
For these reasons, Jimenez’s Motion to Strike, ECF No. 24, will be denied; and
Defendants’ Motion to Dismiss the Amended Complaint, ECF No. 19, will be granted. Given
that Jimenez already amended his pleadings in response to the deficiencies raised in Defendants’
original motion to dismiss, see Am. Compl. 1, his case will be dismissed with prejudice, as an
inability to cure deficiencies in an amended complaint indicates that further attempts to amend
would be futile. See Cozzarelli v. Inspire Pharm., Inc., 549 F.3d 618, 630 (4th Cir. 2008);
Weigel v. Maryland, 950 F. Supp. 2d 811, 825 (D. Md. 2013). Jimenez will be assigned a
“strike” pursuant to 28 U.S.C. § 1915(g). A separate order follows.

April 4, 2017
Date

/S/
Paul W. Grimm
United States District Judge

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