KIRBY v. JOYNER et al
Filing
6
MEMORANDUM OPINION, RECOMMENDATION, AND ORDER OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 02/05/2024, that Plaintiff's Application (Docket Entry 1) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT TO CONSIDER A RECOMMENDATION OF DISMISSAL. IT IS RECOMMENDED that all federal claims in this action be dismissed pursuant to Section 1915(e)(2)(B)(ii), and all state-law claims in this action be dismissed without prejudice pursuant to Section 1367(c)(3). (al)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
ROBERT KIRBY, III,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
RICHARD JOYNER,
et al.,
Defendants.
1:23CV754
MEMORANDUM OPINION, RECOMMENDATION, AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
This
case
comes
before
the
undersigned
United
States
Magistrate Judge on Plaintiff’s Application to Proceed in District
Court Without
Prepaying
Fees
or
Costs
(Docket
Entry
1)
(the
“Application”), filed in conjunction with his pro se Complaint
(Docket Entry 2).
For the reasons that follow, the undersigned
will grant the Application for the limited purpose of recommending
dismissal of this action.
RELEVANT STANDARDS
“The federal in forma pauperis statute, first enacted in 1892
[and now codified at 28 U.S.C. § 1915], is intended to guarantee
that no citizen shall be denied access to the courts solely because
his poverty makes it impossible for him to pay or secure the
costs.”
Cir.
Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th
1995)
(en
banc)
(internal
“Dispensing
with
filing
fees,
quotation
however,
[is]
marks
not
omitted).
without
its
problems. . . .
In particular, litigants suing in forma pauperis
d[o] not need to balance the prospects of successfully obtaining
relief against the administrative costs of bringing suit.” Nagy v.
Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th Cir. 2004).
To
address this concern, the in forma pauperis statute provides that
“the [C]ourt shall dismiss the case at any time if the [C]ourt
determines that . . . the action . . . fails to state a claim on
which relief may be granted.”
28 U.S.C. § 1915(e)(2)(B)(ii).
A plaintiff “fails to state a claim on which relief may be
granted,” id., when the complaint does not “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) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)).
“Where a complaint pleads facts that are
merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to
relief.”
Id. (internal quotation marks omitted).
In other words,
“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”
1
Id.1
Although “[a] document filed pro se is to be liberally
construed and a pro se complaint, however inartfully pleaded, must
be held to less stringent standards than formal pleadings drafted
by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
quotation marks and citation omitted), the United States Court of
Appeals for the Fourth Circuit has “not read Erickson to undermine
Twombly’s requirement that a pleading contain more than labels and
conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th
(continued...)
2
BACKGROUND
Asserting
claims
regarding
a
“Civil
Rights
Violation,
Discrimination, [the] Unfair[,] Deceptive[,] [or] Abus[ive] Acts
[or Practices of] S[ection] 1031 [of the Dodd-Frank Act], [and the]
Federal Tort Claims Act” (the “FTCA”) (Docket Entry 2 at 3),2
Plaintiff initiated this action against Branch Manager Richard
Joyner (“Defendant Joyner”) and the State Employees Credit Union of
North Carolina (individually, the “SECU,” and collectively, the
“Defendants”) (id. at 2).
According to the Complaint:
[Plaintiff holds] the Power of Attorney [(the “POA”)] for
[his] mother A[.]S[.] who has dementia. . . . [The SECU]
refuse[d] to [h]onor [Plaintiff’s] POA. They have also
gone out of the[ir] way with malice in the[ir] heart
shutting down [Plaintiff’s] mother[’]s debit card. . . .
[Plaintiff] went into the branch back in May 2023 to put
[a] Dual Power of Attorney on file.
[The SECU] kept
[Plaintiff] in the bank for 2 h[ou]rs then t[old
Plaintiff] they would get back with [him] and never did.
[Plaintiff] went back into the branch in June 2023[.]
After sitting for close to two hours, [the SECU] said
they w[ould] get back with [him] and never did.
[Plaintiff] went back into [the] branch in Mebane . . .
[and t]his time [Plaintiff] took [his] mother with [him]
so they could see her condition for themselves.
After sitting down with them for about an[] hour [and] a
1
(...continued)
Cir. 2008) (internal quotation marks omitted) (dismissing pro se
complaint); accord Atherton v. District of Columbia Off. of the
Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint
. . . ‘must be held to less stringent standards than formal
pleadings drafted by lawyers.’ But even a pro se complainant must
plead ‘factual matter’ that permits the court to infer ‘more than
the mere possibility of misconduct.’” (first quoting Erickson, 551
U.S. at 94; then quoting Iqbal, 556 U.S. at 679)).
2
Docket Entry page citations utilize the CM/ECF footer’s
pagination.
3
half[,] [t]he branch m[anager Defendant] Joyner ask[ed
Plaintiff] if [Plaintiff] could leave the room so he
could have a conversation with [Plaintiff’s] mother in
private so he could find out how she wanted to proceed
with her account[.]
(Id. at 6-7.)
The Complaint requests “2.5 million [dollars] for
[Defendants’] malice acts” (id. at 4) as well as “Economic Damages,
Non[-]Economic
Damages,
Punitive
Damages,
[and]
Compensatory
Damages” (id. at 8).
DISCUSSION
I. Discrimination & Civil Rights Claims
To
begin,
the
Complaint
purports
to
state
“discrimination” and “civil rights violations.”
claims
for
(Id. at 4.)
However, no federal statutory authority exists for generalized
claims of “discrimination” or “civil rights violations.” Moreover,
simply invoking the terms “discrimination” and “civil rights” does
not suffice to state a viable claim.
See, e.g., Iqbal 556 U.S. at
678 (observing that “the tenet that a court must accept as true all
of the allegations contained in a complaint is inapplicable to
legal conclusions” and that a viable complaint “demands more than
an
unadorned,
the-defendant-unlawfully-harmed-me
accusation”).
This aspect of the Complaint thus fails to state a claim for want
of any factual matter suggesting discrimination or civil rights
violations.
(See Docket Entry 2 at 4-8.)
In addition, to the extent Plaintiff has asserted a federal
constitutional deprivation actionable under 42 U.S.C. § 1983, he
4
must establish “that the alleged deprivation was committed under
color of state law.”
American Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40, 49-50 (1999).
Importantly, “the under-color-of-state-law
element of [Section] 1983 excludes from its reach merely private
conduct, no matter how discriminatory or wrongful.”
Id. at 50
(internal quotation marks omitted).
Accordingly, “[t]he ultimate issue in determining whether a
person is subject to suit under [Section] 1983 is the same question
posed in cases arising under the Fourteenth Amendment: is the
alleged infringement of federal rights fairly attributable to the
State?”
Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982) (internal
quotation marks omitted).
The acts of a private party qualify as
“fairly attributable” to the State and arise under “color of state
law” for Section 1983 purposes “if, though only if, there is such
a close nexus between the State and the challenged action that
seemingly private behavior may be fairly treated as that of the
State
itself.”
Brentwood
Acad.
v.
Tennessee
Secondary
Sch.
Athletic Ass’n, 531 U.S. 288, 294-95 (2001) (internal quotation
marks omitted). Courts have “treated a nominally private entity as
a state actor when it is controlled by an agency of the State, when
it has been delegated a public function by the State, when it is
entwined with governmental policies, or when government is entwined
in its management or control.”
Id. at 296 (citations, brackets,
and internal quotation marks omitted).
5
Although organized under North Carolina law for the benefit of
North Carolina residents, see N.C. Gen. Stat. § 54-109.2, “[the]
SECU is a private entity, not a governmental one,” Neal v. State
Emps. Credit Union, No. 2:19cv44, 2020 WL 5524781, at *2 (E.D.N.C.
Apr. 17, 2020), recommendation adopted, 2020 WL 2301468 (E.D.N.C.
May 8, 2020).
Moreover, “[t]he mere fact that a private business
is subject to extensive state regulation does not by itself convert
its action into that of the State.”
Sullivan, 526 U.S. at 41; see
also Monsegue v. Moore, 4:18cv239, 2019 WL 1085188, at *2 (S.D. Ga.
Mar. 7, 2019) (holding that private banks do not constitute state
actors because neither “underwriting by the [federal government
n]or timely responses to federal subpoenas make private banks state
actors” (citation and internal quotation marks omitted)). Further,
simply “[p]roviding credit union services is not a traditional
governmental function.” Hauschild v. Nielsen, 325 F. Supp. 2d 995,
1004 (D. Neb. 2004).
state
action
Thus, the Complaint fails to satisfy the
requirement
of
Section
1983.
See
Murrell
v.
Pennsylvania State Emps. Credit Union, No. 1:20cv24, 2020 WL
6710212, at *3 (M.D. Penn. Nov. 16, 2020) (dismissing plaintiff’s
Section 1983 claim because “[b]anks, including state employee
credit unions, are not state actors for
(internal quotation marks omitted)).
6
[Section] 1983 purposes”
Accordingly,
the
Court
should
dismiss
Plaintiff’s
discrimination and civil rights claims for failure to state a
viable claim.
See 28 U.S.C. § 1915(e)(2)(B)(ii).
II. Unfair and Deceptive Acts Claim
The Complaint alleges violations of the “Unfair, Deceptive,
[or] Abus[ive] Acts [or] Practices” statute (the “UDAAP”). (Docket
Entry 2 at 7.)
Originating from Section 1031 of the Dodd-Frank
Wall Street Reform and Consumer Protection Act (and now codified at
12 U.S.C. § 5531), the UDAAP provides that:
The Bureau may take any action authorized under [Section
5331(e)] to prevent a covered person or service provider
from committing or engaging in an unfair, deceptive, or
abusive act or practice under Federal law in connection
with any transaction with a consumer for a consumer
financial product or service, or the offering of a
consumer financial product or service.
12 U.S.C. § 5531(a).
This statute grants the Consumer Financial
Protection Bureau (the “CFPB”) enforcement power but does not
create a private cause of action for individuals to enforce its
protections.
See id.
“[I]f a statute does not expressly create a
private cause of action, one does not exist.”
Ormet Corp. v. Ohio
Power Co., 98 F.3d 799, 805 (4th Cir. 1996).
Consistent with that understanding, “courts have commonly
declined to read private causes of action into provisions of
Dodd-Frank that do not explicitly provide for them.”
Beider v.
Retrieval Masters Creditors Bureau, Inc., 146 F. Supp. 3d 465, 472
(E.D.N.Y. 2015);
see also McCray v. Bank of Am., Corp., No.
7
14cv2446, 2017 WL 1315509, at *16 (D. Md. Apr. 10, 2017) (holding
that “various courts have concluded that there is no private right
action to enforce 12 U.S.C. §[] 5531.”); Kalisz v. American Express
Centurion Bank, No. 1:15cv1578, 2016 WL 1367169, at *2 (E.D. Va.
Apr. 5, 2016) (“[Section 5531] does not provide a private right of
action.
Section 5564[] reserves litigation power to the [CFPB] to
enforce any provision of Title 12.”); Diaz v. Argon Agency Inc.,
No. 15cv451, 2015 WL 7737317 at *3 (D. Haw. Nov. 30, 2015)
(“[T]here is no private right of action under [Section 5531], which
merely outline[s] duties, authorities[,] and enforcement powers of
the CFPB.”).
Given this absence of any private right of action,
the Court should dismiss Plaintiff’s UDAAP claims under Section
1915(e)(2)(B)(ii).
See Maddox v. CitiFinancial Mortg. Co., No.
5:18cv41, 2018 WL 1547362, at *1 (W.D. Va. Mar. 29, 2018) (holding
that plaintiff’s “UDAAP claims must be dismissed for failure to
state a claim” because “UDAAP [does not] provide a private cause of
action”).
III. FTCA Claim
As
to
Plaintiff’s
FTCA
claim,
the
FTCA
applies
only
to
“negligent or wrongful act[s] or omission[s] of any employee of the
[Federal] Government while acting within the scope of his office or
employment.”
28
U.S.C.
§
1346(b).
Representing
a
limited
congressional waiver of federal sovereign immunity for injury
“caused by the negligent or wrongful act of a [Federal] Government
8
employee acting within the scope of his or her employment,” the
FTCA “permits the United States to be held liable in tort in the
same respect as a private person would be liable under the law of
the place where the act occurred.”
Medina v. United States, 259
F.3d
The
220,
223
(4th
Cir.
2001).
Complaint
alleges
Defendant Joyner serves as branch manager for the SECU.
Docket Entry 2 at 2, 6-7.)
that
(See
As an employee of the SECU, a private
entity, Defendant Joyner does not qualify as a federal employee.
Because the Complaint does not seek relief based on the conduct of
a federal employee (see id. at 4-8), the Court should dismiss
Plaintiff’s FTCA claim for failure to state a claim pursuant to
Section 1915(e)(2)(B)(ii).
IV. Potential State Claims
In light of the fatal deficiencies with the Complaint’s
federal claims and, as discussed below, the lack of diversity-ofcitizenship jurisdiction, the Court should decline to entertain any
of Plaintiff’s state-law claims.
Federal district courts “have original jurisdiction of all
civil actions arising under the Constitution [and] laws . . . of
the United States.”
28 U.S.C. § 1331.
Additionally,
in any civil action of which the [federal] courts have
original jurisdiction, the [federal] courts shall have
supplemental jurisdiction over all other claims that are
so related to claims in the action within such original
jurisdiction that they form part of the same case or
controversy under Article III of the United States
Constitution.” 28 U.S.C. § 1367(a).
Nevertheless, a
federal court “may decline to exercise supplemental
9
jurisdiction over a claim,” 28 U.S.C. § 1367(c), if it
dismisses “all claims over which it has original
jurisdiction.
28 U.S.C. § 1367(c)(3).
Given that, as discussed above, the Complaint fails to present
a viable federal claim, the Court should decline to exercise
supplemental jurisdiction over any state-law claims Plaintiff has
presented.
1995)
See Shanaghan v. Cahill, 58 F.3d 106, 110 (4th Cir.
(explaining
that,
pursuant
to
Section
1367(c)(3),
“a
[federal] court has discretion to dismiss or keep a case when it
has dismissed all claims over which it has original jurisdiction,”
and that “[t]here are no situations wherein a federal court must
retain jurisdiction over a state law claim, which would not by
itself support jurisdiction” (emphasis omitted)). Finally, because
the Complaint does not allege facts establishing diversity of
citizenship (see Docket Entry 2 at 1-2 (listing North Carolina
addresses for all parties), the Court lacks diversity jurisdiction
over this action, see 28 U.S.C. § 1332(a) (“The [federal] district
courts shall have original jurisdiction of all civil actions where
the
matter
in
controversy
exceeds
the
sum
or
value
of
$75,000 . . . and is between [] citizens of different [s]tates.”);
see also Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982) (“The
burden of proving subject matter jurisdiction . . . is on the
plaintiff, the party asserting jurisdiction.”).
10
Under these circumstances, the Court should dismiss without
prejudice any state-law claims in the Complaint under Section
1367(c)(3).
CONCLUSION
The Complaint does not state a viable federal claim and any
state-law claims should not proceed in this Court.
IT IS THEREFORE ORDERED that Plaintiff’s Application (Docket
Entry 1) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT
TO CONSIDER A RECOMMENDATION OF DISMISSAL.
IT IS RECOMMENDED that all federal claims in this action be
dismissed pursuant to Section 1915(e)(2)(B)(ii), and all state-law
claims in this action be dismissed without prejudice pursuant to
Section 1367(c)(3).
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
February 5, 2024
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