McRee v. Renasant Bank

Filing 9

ORDER ADOPTING 8 REPORT AND RECOMMENDATION TO DISMISS, CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge James D. Todd on 1/3/2017. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
CELIA ANN MCREE,
Plaintiff,
VS.
RENASANT BANK LEGAL
DEPARTMENT,
Defendant.

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No. 16-2879-JDT-dkv

ORDER ADOPTING REPORT AND RECOMMENDATION TO DISMISS,
CERTIFYING AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On November 4, 2016, Plaintiff Celia Anne McRee, a resident of Memphis,
Tennessee, filed a pro se complaint on the form used for commencing an action pursuant to
42 U.S.C. § 1983, accompanied by a motion to proceed in forma pauperis. (ECF Nos. 1 &
3.) United States Magistrate Judge Diane K. Vescovo granted leave to proceed in forma
pauperis on November 8, 2016. (ECF No. 7.) On December 6, 2016, Magistrate Judge
Vescovo issued a Report and Recommendation (“R&R”) in which she recommended the
Court dismiss the case sua sponte for failure to state a claim and lack of subect matter
jurisdiction. (ECF No. 8.) Objections to the R&R were due within fourteen days, on or
before December 23, 2016. See Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).
However, Plaintiff has filed no objections.

Plaintiff has sued the Legal Department of Renasant Bank in Tupelo, Mississippi
(“Bank”). She alleges the Bank removed $6,166.95 and a $100 levy fee from her account
based on a Notice of Levy from the Internal Revenue Service, ostensibly to satisfy a debt for
unpaid taxes for tax year 2003. Plaintiff alleges she did not owe the tax because she did not
make enough in 2003 to require her to file a federal tax return. She contends she has pursued
the return of her money for four years, but the Bank insists she must recoup the funds from
the IRS because it was paid pursuant to the Notice of Levy. However, Plaintiff further
alleges the IRS has informed her that it never issued a levy on her and has never received any
payment of $6,166.95 from the Bank. Plaintiff states that she was told the problem could be
due to identity theft; she seeks the return of her money.
Magistrate Judge Vescovo first determined that Plaintiff’s complaint fails to state a
claim under 42 U.S.C. § 1983. “A § 1983 plaintiff may not sue purely private parties.”
Brotherton v. Cleveland, 173 F.3d 552, 567 (6th Cir. 1999). Thus, “[i]n order to be subject
to suit under § 1983, [a] defendant’s actions must be fairly attributable to the state.” Collyer
v. Darling, 98 F.3d 211, 231-32 (6th Cir. 1997). The Bank is not a governmental entity but
a private business which does not act under color of state law. Furthermore, Plaintiff has not
alleged that the Bank’s actions deprived her of any rights under either the U.S. Constitution
or federal statutory law.
The Magistrate Judge further found that Plaintiff’s claims, at most, were claims
arising under state law. However, this Court has no diversity jurisdiction over such claims.
Although Plaintiff and the Bank appear to be citizens of different states, the amount in
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controversy is much less than the $75,000 required to support diversity jurisdiction. See 28
U.S.C. § 1332.
The Court finds no error in Magistrate Judge Vescovo’s conclusions and ADOPTS
the R&R in its entirety. Accordingly, the Court DISMISSES the complaint pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim and for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(h)(3).
Pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rule of Appellate Procedure 24(a),
the Court CERTIFIES that an appeal by Plaintiff would not be taken in good faith and
DENIES leave to appeal in forma pauperis. Accordingly, if Plaintiff files a notice of appeal,
she must also pay the entire $505 appellate filing fee or file a motion to proceed in forma
pauperis and supporting affidavit in the Sixth Circuit Court of Appeals.
The Clerk is directed to prepare a judgment.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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