Orlando v. PNC Bank, National Association et al

Filing 8

Memorandum Opinion and Order: This action is dismissed under section 1915(e). Further, the Court certifies, pursuant to 28 U.S.C. Section 1915(a)(3), that an appeal from this decision could not be taken in good faith. Judge Sara Lioi on 6/5/2015. (P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ORLANDO CARTER,

PLAINTIFF,
vs.
PNC BANK, NATIONAL
ASSOCIATION, et al.,
DEFENDANTS.

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CASE NO. 4:15-cv-372

JUDGE SARA LIOI
MEMORANDUM OPINION
AND ORDER

On February 26, 2015, plaintiff pro se Orlando Carter, an inmate at the Federal
Correctional Institution at Elkton, filed this in forma pauperis declaratory judgment action
against defendants PNC Bank, National Association, and National City Bank nka PNC Financial
Services Group. A motion to amend complaint was filed on May 8, 2015, asking the court to
allow two minor modifications to the complaint. That motion is granted.
The complaint seeks an order declaring that plaintiff’s company, CBST
Acquisition, LLC, did not provide a legal and binding loan guaranty in 2004 to re-pay $4 million
provided to the company by defendants. Plaintiff states he has suffered mental anguish and
emotional distress because defendants assert there is such a guaranty. For the reasons stated
below, this action is dismissed pursuant to 28 U.S.C. § 1915(e).
Although pro se pleadings are liberally construed, Boag v. MacDougall, 454 U.S.
364, 365, 102 S. Ct. 700, 70 L. Ed. 2d 551 (1982) (per curiam); Haines v. Kerner, 404 U.S. 519,
520, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), the district court is required to dismiss an action
under 28 U.S.C. § 1915(e) if it fails to state a claim upon which relief can be granted, or if it

lacks an arguable basis in law or fact.1 Neitzke v. Williams, 490 U.S. 319, 109 S. Ct. 1827, 104 L.
Ed. 2d 338 (1989); Lawler v. Marshall, 898 F.2d 1196 (6th Cir. 1990); Sistrunk v. City of
Strongsville, 99 F.3d 194, 197 (6th Cir. 1996).
A cause of action fails to state a claim upon which relief my be granted when it
lacks “plausibility in the complaint.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564, 127 S. Ct.
1955, 167 L. Ed. 2d 929 (2007). A pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129
S. Ct. 1937, 173 L. Ed. 2d 868 (2009). The factual allegations in the pleading must be sufficient
to raise the right to relief above the speculative level on the assumption that all the allegations in
the pleading are true. Twombly, 550 U.S. at 555. The plaintiff is not required to include detailed
factual allegations, but the complaint must provide more than “an unadorned, the-defendantunlawfully-harmed me accusation.” Iqbal, 556 U.S. at 678. A pleading that offers legal
conclusions or a simple recitation of the elements of a cause of action will not meet this pleading
standard. Id.
Plaintiff’s current incarceration is the result of his convictions in the United States
District Court for the Southern District of Ohio on eleven counts of bank fraud, mail fraud,
bankruptcy fraud, and related offenses. See, United States v. Orlando Carter, S.D. Ohio Case
No. 1:08CR51. He clearly seeks in the instant case to collaterally attack those convictions by

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A claim may be dismissed sua sponte, without prior notice to the plaintiff and without service of process on the
defendant, if the court explicitly states that it is invoking section 1915(e) [formerly 28 U.S.C. § 1915(d)] and is
dismissing the claim for one of the reasons set forth in the statute. McGore v. Wrigglesworth, 114 F.3d 601, 608-09
(6th Cir. 1997); Spruytte v. Walters, 753 F.2d 498, 500 (6th Cir. 1985), cert. denied, 474 U.S. 1054, 106 S. Ct. 788,
88 L. Ed. 2d 767 (1986); Harris v. Johnson, 784 F.2d 222, 224 (6th Cir. 1986); Brooks v. Seiter, 779 F.2d 1177,
1179 (6th Cir. 1985).

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way of a judgment from this Court concerning the loan guaranty at issue, the same approach he
took in his Motion to Vacate, Set Aside or Correct Sentence filed with the trial court in his
criminal case. Id., Doc. No. 154.
When a prisoner challenges “the very fact or duration of his physical
imprisonment, ... his sole federal remedy is a writ of habeas corpus.” Preiser v. Rodriguez, 411
U.S. 475, 501, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973). A prisoner may not raise claims in a civil
action if a judgment on the merits of those claims would affect the validity of his conviction or
sentence, unless the conviction or sentence has been set aside. See Edwards v. Balisok, 520 U.S.
641, 646, 117 S. Ct. 1584, 137 L. Ed. 2d 906 (1997); Heck v. Humphrey, 512 U.S. 477, 486, 114
S. Ct. 2364, 129 L. Ed. 2d 383 (1994). The holding in Heck applies whether the plaintiff seeks
injunctive, declaratory or monetary relief. Wilson v. Kinkela, No. 97-4035, 1998 WL 246401, at
*1 (6th Cir. May 5, 1998).2
Based on the foregoing, this action is dismissed under section 1915(e). Further,
the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal from this decision could
not be taken in good faith.

IT IS SO ORDERED.
Dated: June 5, 2015
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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It should be noted that plaintiff’s assertion that there was not a legal and binding loan guaranty, and that therefore
his convictions were invalid, was explicitly rejected by the trial court in plaintiff’s criminal case when that court
denied his Motion to Vacate, Set Aside or Correct Sentence. Carter, supra, Doc. No. 172, pp. 8-11.

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