Burke v. PNC Bank et al

Filing 5

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [ECF No. 2] is GRANTED. IT IS FURTHER ORDERED that this action is DISMISSED without prejudice. An Order of Dismissal will be filed separately. Signed by District Judge Stephen N. Limbaugh, Jr on 7/28/2014. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CALVIN BURKE,

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Plaintiff,
v.
PNC BANK, et al.,
Defendants,

No. 4:14CV1289 SNLJ

MEMORANDUM AND ORDER
Plaintiff moves to proceed in forma pauperis and has submitted a civil complaint. Based
on plaintiff’s financial affidavit, the Court will allow him to proceed without prepayment of the
filing fee. Additionally, the Court will dismiss this action without further proceedings.
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); Denton v. Hernandez, 504 U.S. 25, 31 (1992). 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). A complaint fails to state a claim if it does not plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “[T]hreadbare recitals of the elements of a cause of
action’s elements, supported by mere conclusory statements” do not state a claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).

In his complaint, plaintiff alleges that an employee at PNC bank discriminated against
him because of his race by asking plaintiff to demonstrate that he had actual business with the
bank before letting him enter the bank. Plaintiff claims he went to the bank to cash a check.
Upon arrival, defendant Lorenzo Tylervor allegedly stopped plaintiff and asked to see the check
before letting plaintiff in. Plaintiff says he showed Tylervor his check. And plaintiff asserts that
Tylervor then let him into the bank to conduct his business.
Plaintiff says that he then began calling the bank branch to complain about Tylervor’s
actions. Plaintiff called several times and threatened to protest outside the bank. Plaintiff
maintains that PNC did not redress his complaints to his satisfaction.
Plaintiff has not stated a basis for this Court’s jurisdiction. The Court will construe the
complaint as coming under 42 U.S.C. § 1981, which is the only statute the Court can envision
applying to the alleged facts. A plaintiff establishes a prima facie case under ' 1981 by showing
(1) membership in a protected class; (2) the intent to discriminate on the basis of race on the part
of the defendant; and (3) discrimination interfering with a protected activity (i.e., the making and
enforcement of contracts). Bediako v. Stein Mart, Inc., 354 F.3d 835, 839 (8th Cir.2004).
Plaintiff has not alleged any facts showing that PNC or its employees actually
discriminated against him by refusing to let him do business inside the bank.

Plaintiff’s

allegations only show that Tylervor assessed whether he had actual business to do in the bank
before letting him enter. These allegations fail to state a claim under § 1981. And plaintiff’s
allegations show that he continuously harassed PNC’s employees after he conducted business
with the institution, which demonstrates malice. As a result, the Court will dismiss this action
under 28 U.S.C. § 1915(e).
Accordingly,

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IT IS HEREBY ORDERED that plaintiff’s motion for leave to proceed in forma
pauperis [ECF No. 2] is GRANTED.
IT IS FURTHER ORDERED that this action is DISMISSED without prejudice.
An Order of Dismissal will be filed separately.
Dated this 28th day of July, 2014.

STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE

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