Walker v. State Farm Mutual Automobile Insurance Company et al

Filing 13

MEMORANDUM AND ORDER re: 2 , 6 ORDERED that plaintiff's motions to proceed in forma pauperis [Doc. #2 and #6] are GRANTED. FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon the complaint because the complai nt is legally frivolous or fails to state a claim upon which relief can be granted, or both. FURTHER ORDERED that to the extent plaintiff has brought state law claims for relief, these claims will be dismissed without prejudice pursuant to 28 U.S.C. 1367(c). FURTHER ORDERED that all other pending motions, including plaintiff's motions for contempt, are DENIED AS MOOT. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by District Judge Jean C. Hamilton on 12/9/13. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANDREW WALKER,
Plaintiff,
v.
STATE FARM AUTOMOBILE
INS. CO., et al.,
Defendants.

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No. 4:13CV2331 JCH

MEMORANDUM AND ORDER
This matter is before the Court upon the motion of plaintiff for leave to
commence this action without prepayment of the filing fee pursuant to 28 U.S.C. §
1915. Upon consideration of the financial information provided with the motion, the
Court finds that plaintiff is financially unable to pay any portion of the filing fee. As
a result, plaintiff will be granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. Additionally, the Court has reviewed the second amended complaint1
and will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B).
28 U.S.C. § 1915(e)

1

The second amended complaint supercedes all previously filed complaints
and will be the only complaint this Court will review.

Pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court must dismiss a complaint
filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant who is immune
from such relief. An action is frivolous if it “lacks an arguable basis in either law or
fact.” Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is malicious if it is
undertaken for the purpose of harassing the named defendants and not for the purpose
of vindicating a cognizable right. Spencer v. Rhodes, 656 F. Supp. 458, 461-63
(E.D.N.C. 1987), aff’d 826 F.2d 1059 (4th Cir. 1987).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify
the allegations in the complaint that are not entitled to the assumption of truth.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009).

These include “legal

conclusions” and “[t]hreadbare recitals of the elements of a cause of action [that are]
supported by mere conclusory statements.” Id. at 1949. Second, the Court must
determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a “context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 1950. The plaintiff is required to
plead facts that show more than the “mere possibility of misconduct.” Id. The Court
must review the factual allegations in the complaint “to determine if they plausibly
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suggest an entitlement to relief.”

Id. at 1951.

When faced with alternative

explanations for the alleged misconduct, the Court may exercise its judgment in
determining whether plaintiff’s conclusion is the most plausible or whether it is more
likely that no misconduct occurred. Id. at 1950, 51-52.
The Second Amended Complaint
Plaintiff brings this action for monetary damages pursuant to 42 U.S.C. § 1983
alleging violations of his civil rights.2 Plaintiff claims that defendants violated his
rights by invading his privacy and breaching his confidence in relation to an unlawful
detainer action that they filed against him in Alaska state court in April of 2012.
Named as defendants are: State Farm Automobile Insurance Company; the law firm
of Farley & Graves, P.C.; Laura L. Farley (lawyer representing Longitude 150 LLC

2

Plaintiff additionally asserts that he is bringing this lawsuit pursuant to 18
U.S.C. § 1028, as well as § 505(a)(7) of the Federal Trade Commission Act and 11
U.S.C. § 362 of the Bankruptcy Code. Plaintiff does not have a right of action
under any of the aforementioned statutes for “invasion of privacy” and “breach of
confidence” for the claims outlined in his second amended complaint. Section
1028 is a criminal statute and cannot be used as a basis for jurisdiction in this civil
matter. As for plaintiff’s second ground for jurisdiction, the Court presumes that
plaintiff is referring to the Gramm-Leach-Bliley Act (“GLBA”), 15 U.S.C. § 6801
et seq., relating to the privacy of consumer financial information. Not only are
none of the defendants in this action financial institutions, but also, there is no
private right of action for an alleged violation of the GLBA. See Dunmire v.
Morgan Stanley DW, Inc., 475 F.3d 956 (8th Cir. 2007). Finally, plaintiff’s
assertions under the bankruptcy code have already been litigated in the bankruptcy
court to no avail. See infra.
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in the Alaska state court action); Barbara Pittman (Landlord); Greg Pittman
(Landlord); Longitude 150 LLC (private business/Landlord Company); and Richard
Crabtree (lawyer in the Alaska state court action).3
The gist of plaintiff’s complaints against defendants appears to be that
defendants Longitude 150 LLC, Greg Pittman and Barbara Pittman, through their
lawyers, (the defendant lawyers), filed an unlawful detainer action against him in
April of 2012 in Alaska state court. At the time of the filing of the state court action,
the Pittmans and Longitude 150 LLC appear to have been insured by State Farm
Automobile Insurance Company. Plaintiff takes issue with the fact that at some point
during the Alaska state court action, the Pittmans allegedly provided Cook Inlet
Housing Authority information relating to plaintiff’s tenancy. Plaintiff asserts that

3

The Court takes judicial notice of plaintiff’s prior attempts to bring claims
against defendants in the bankruptcy court. See In re Walker, Case No. 12-47852399 (Bkr. E.D. Mo.). The Honorable Barry S. Schermer decided in two separate
opinions, on October 15, 2013 and November 12, 2013, that plaintiff could not
bring a pre-petition (for the time period prior to October 15, 2013) claim against
any of the defendants for an invasion of privacy as this cause of action was barred
by plaintiff’s failure to inform the bankruptcy court of the existence of such a
cause of action. However, he left plaintiff free to pursue post-petition claims
against defendants, should he choose to do so, in another forum. Judge Schermer
further decided that defendants had not intentionally violated the bankruptcy stay
and dismissed plaintiff’s allegations asserting such. This Court will not overrule
Judge Schermer’s reasoned findings relating to the aforementioned.
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the Pittmans not only provided Cook Inlet Housing Authority4 with a false “Landlord
Reference Checklist,” but they also provided the Housing Authority with personal
information about plaintiff without his consent, including, his social security number
and birthdate.
Discussion
The essential elements of a constitutional claim under § 1983 are (1) that the
defendant acted under color of state law, and (2) that the alleged wrongful conduct
deprived the plaintiff of a constitutionally protected federal right. Schmidt v. City
of Bella Villa, 557 F.3d 564, 571 (8th Cir. 2009). None of the defendants in this
action are alleged to be, or have been, state actors. Accordingly, plaintiff cannot
state a claim against them under § 1983.
Furthermore, it is not entirely clear whether plaintiff’s “invasion of
privacy”/”breach of confidence” claim(s) have been brought as “right to privacy”
claims under the Fourth Amendment of the Constitution or in some other manner
yet unspecified.5 To the extent plaintiff is indeed attempting to state a “right to

4

The Cook Inlet Housing Authority was created by the Alaska Legislature in
1974 to ensure that elders, individuals and families in the Cook Inlet region would
have access to quality, affordable housing.
5

To the extent that plaintiff is attempting to assert that defendants violated
the privacy provisions of say, the Health Insurance Portability and Accountability
Act ("HIPAA"), Pub.L.No. 104-191, 110 Stat. 1936 (1996), plaintiff is simply
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privacy” claim under § 1983 and the Fourth Amendment, his claim fails for the
same reason as noted above - none of the defendants are state actors and thus
cannot be held liable under § 1983.
Moreover, plaintiff’s conclusory allegations of an “invasion into his privacy”
offer nothing more than a “[t]hreadbare recital[] of a cause of action’s elements” and
are not entitled to an assumption of truth. Iqbal, 129 S. Ct. at 1949. Simply put, there
are no non-conclusory allegations that would show that plaintiff was deprived of any
rights provided to him under the Constitution or that defendants discriminated against
in any way; thus, the complaint “stops short of the line between possibility and
plausibility of ‘entitlement to relief.’” Twombly, 550 U.S. at 557; Iqbal, 129 S. Ct.
at 1949. As a result, the Court will dismiss this action for failure to state a claim upon
which relief can be granted. To the extent plaintiff has alleged state law claims for
relief, these claims will be denied without prejudice pursuant to 28 U.S.C. § 1367(c).
Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motions to proceed in forma
pauperis [Doc. #2 and #6] are GRANTED.

incorrect. There is no private cause of action under HIPAA. See Acara v. Banks,
470 F.3d 569, 572 (5th Cir. 2006); Bradford v. Blake, 2006 WL 744307 (E.D.Mo.
2006).
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IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon the complaint because the complaint is legally frivolous or fails
to state a claim upon which relief can be granted, or both.
IT IS FURTHER ORDERED that to the extent plaintiff has brought state law
claims for relief, these claims will be dismissed without prejudice pursuant to 28
U.S.C. § 1367(c).
IT IS FURTHER ORDERED that all other pending motions, including
plaintiff’s motions for contempt, are DENIED AS MOOT.
An appropriate Order of Dismissal shall accompany this Memorandum and
Order.
Dated this 9th day of December, 2013.

/s/ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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