Hunter v. Midland Mortgage

Filing 6

ORDER re 1 Complaint filed by Chase Carmen Hunter. The Court has fulfilled its obligation to screen Plaintiff's complaint and finds that she has failed to state a claim against Defendant. The Court further concludes that amendment would be futile, even giving liberal construction to her allegations. As such, her Complaint is hereby DISMISSED, and her Motion for Password for Electronic Filing and Motion for Temporary Restraining Order without Notice are DENIED AS MOOT. Signed by Honorable David L. Russell on 12/7/15. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
CHASE CARMEN HUNTER,
Plaintiff,
v.
MIDLAND MORTGAGE, a division of
MIDFIRST BANK,
Defendant.

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CIV-15-1266-R

ORDER
Plaintiff filed this action seeking declaratory and injunctive relief against Defendant
Midland Mortgage, a division of Midfirst Bank. In the Complaint Plaintiff alleges that this
case arises under 42 U.S.C. § 1983, § 1985, § 1986, and that the Court has jurisdiction under
28 U.S.C. § 1331 and § 1332. She filed a Motion for Temporary Restraining Order (Doc. No.
2), a Motion for Password for Electronic Filing (Doc. No. 4), and has been granted leave to
proceed in forma pauperis (Doc. No. 5), which results in screening of this action pursuant
to Title 28 U.S.C. § 1915.
Section 1915(e)(2)(B) of the United States Code, Title 28, states as follows:
(2) Notwithstanding any filing fee, or any portion thereof, that may have been
paid, the court shall dismiss the case at any time if the court determines that—
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(B) the action or appeal—
(i) is frivolous or malicious;
(ii) fails to state claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.

28 U.S.C. § 1915(e)(2)(B).1 A complaint is frivolous "where it lacks an arguable basis in
either law or fact." Although sua sponte dismissals are generally disfavored by the courts,
the court may dismiss an action pursuant to 28 U.S.C. § 1915(e)(2) “for failure to state a
claim if the allegations, taken as true, show the plaintiff is not entitled to relief.” Zapata v.
Public Defenders Office, 252 Fed.Appx. 237, 238 (10th Cir.2007) (quoting Jones v. Bock,
549 U.S. 199, 127 S.Ct. 910, 920 (2007)).
Plaintiff's alleges Defendant has provided information to persons posing as Plaintiff
with regard to payoff of her mortgage. She contends that third parties are attempting to steal
her home, located in Virginia, in an attempt to collect on a void and fraudulent judgment
entered against her in the amount of $10,000,000 in a Florida state court.
Plaintiff seeks relief, in part, based on the Declaratory Judgment Act. The Act,
however, does not provide a basis for jurisdiction. Rather, it permits the Court to exercise its
discretion to issue a declaratory judgment assessing the rights of parties, if jurisdictional
prerequisites are fulfilled. The Court finds that Plaintiff has failed to establish that the Court
has subject matter jurisdiction over this action, and therefore, dismissal is appropriate.
Plaintiff's reliance on 42 U.S.C. § 1983 is misplaced, because § 1983 creates a private
cause of action when persons acting under color of state law violate a person's constitutional
rights. A private person is not liable under 42 U.S.C. § 1983, and therefore Plaintiff cannot

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Although Plaintiff is apparently not a prisoner as defined by 28 U.S.C. § 1915:
"'[s]ection 1915(a) applies to all persons applying for IFP status, and not just to prisoners.'"
Salgado-Toribio v. Holder, 713 F.3d 1267, 1270 (10th Cir.2013) (alteration in original)
(quoting Lister v. Dep't of Treasury, 408 F.3d 1309, 1312 (10th Cir.2005)).
Judy v. Obama, 601 F. App'x 620, 621 (10th Cir. 2015).

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rely on this section to invoke the Court's jurisdiction.
42 U.S.C. § 1985 provides a cause of action for conspiracy to violate a person's civil
rights, if the conspiracy is "motivated by some racial, or perhaps otherwise class-based,
invidiously discriminatory animus." Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir.
1983)(quotation omitted). Plaintiff makes insufficient allegations regarding an agreement to
violate her rights and no allegations that could be construed as alleging racial discrimination.
Rather, with regard to the named Defendant, she argues the bank was duped into granting
information to the persons attempting to steal her house to satisfy the fraudulent judgment.
Absent agreement, there can be no conspiracy. Finally, 42 U.S.C. § 1986 does not provide
a cause of action against Defendant. Pursuant to § 1986, a plaintiff can bring a civil action
for damages against a party who knows that a 42 U.S.C. § 1985 violation will occur, has the
power to prevent it, and fails to do so. See 42 U.S.C. § 1986. In light of the absence of any
allegations of a § 1985 conspiracy, a § 1986 claim cannot stand either.
Plaintiff also alleges diversity jurisdiction. Although Plaintiff properly pleads that she
and Defendant are of diverse citizenship, there are no factual allegations to support her
contention that the $75,000.00 amount in controversy requirement has been met. Plaintiff
does not request damages, but rather states:
Hunter moves for the issuance of a declaratory judgment and a permanent
injunction that explicitly enjoins the Respondent from communicating with
any third party or accepting any communications or documents from any third
party regarding Hunter's loan or Hunter's house without Hunter's explicit
written approval and such written approval must be received with Hunter's
original signature and said signature must be affixed to said written approval
in the presence of a notary. In addition, the injunction shall enjoin the
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Respondent from accepting money, checks, wire transfers, and any and all
other types of currency from any third party as payment toward Hunter's loan
without the same written approval and such written approval must be received
with Hunter's original signature and said signature must be affixed to said
written approval in the presence of a notary.
Complaint, pp. 9-10. The Court cannot anticipate that the cost to Defendant of providing the
relief sought would exceed $75,000.00. See Hunt v. Washington State Apple Adver. Comm'n,
432 U.S. 333, 347 (1977). As such, Plaintiff has failed to establish the existence of diversity
jurisdiction.
The Court has fulfilled its obligation to screen Plaintiff's complaint and finds that she
has failed to state a claim against Defendant. The Court further concludes that amendment
would be futile, even giving liberal construction to her allegations. As such, her Complaint
is hereby DISMISSED, and her Motion for Password for Electronic Filing and Motion for
Temporary Restraining Order without Notice are DENIED AS MOOT.
IT IS SO ORDERED this 7th day of December, 2015.

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