Carter, et al v. 21st Mortgage Corporation, et al

Filing 9

ORDER adopting 8 Report and Recommendations. Signed by Judge Samuel H. Mays, Jr on 10/17/2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

JOEL CARTER and CATRINA FORD
CARTER,
Plaintiffs,
v.
21ST MORTGAGE CORPORATION and
KNOXVILLE 2012 TRUST,
Defendants.

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No. 17-cv-2723-SHM-tmp

ORDER

Before the Court is the Magistrate Judge’s Report and
Recommendation, dated October 2, 2017 (the “Report”).
8.)

(ECF No.

The Report recommends that Plaintiffs Joel Carter and

Catrina Ford Carter’s pro se complaint against Defendants 21st
Mortgage Corporation and Knoxville 2012 Trust (collectively,
“Defendants”) be dismissed sua sponte pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii).

Plaintiffs have not filed any objections

to the Report, and the deadline for doing so has passed.

L.R.

72.1(g)(2).
For the following reasons, the Report is ADOPTED and this
action is DISMISSED.

On September 28, 2017, Plaintiffs filed their pro se
complaint against Defendants for violation of civil rights
(ECF No. 1 at 1.) 1

under 42 U.S.C. § 1983.

The complaint

alleges that: “Under 42 USC 1983 constitutional rights
deprived[.] Facts regarding Mortgage is securitization
illegal[.] Courtney Ward of 21st Mortgage violated const.
rights harassment[.]”

(Id. at 2.)

As relief, plaintiffs

request: “A Recouptent [sic] of all money given to 21st
Mortgage plus interest[.]”

(Id. at 3.)

Plaintiffs have named

Knoxville 2012 Trust as a defendant, but include no reference
to its conduct or potential liability in the complaint.

(Id.

at 1-3.)
On October 2, 2017, United States Magistrate Judge Tu M.
Pham entered the Report.

(ECF No. 8.)

The Report recommends

that the action be dismissed sua sponte pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim.

The Report

explains as follows:
Plaintiffs’ complaint is captioned “Complaint
for Violation of Civil Rights Under 42 U.S.C, §
1983.”
(ECF No. 1 at 1.)
To state a claim under
§ 1983, a plaintiff must allege: (1) a deprivation of
rights secured by the “Constitution and laws” of the
United States (2) committed by a defendant acting
under color of state law.
Adickes v. S.H. Kress &
Co., 398 U.S. 144, 150 (1970). “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]
1

Unless otherwise noted, all in-cite page numbers refer to PageID
numbers.

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defendant’s actions must be fairly attributable to
the state.” Collyer v. Darling, 98 F.3d 211, 231-32
(6th Cir. 1997).
21st Mortgage Corporation and
Knoxville 2012 Trust appear to be purely private
parties, and plaintiffs’ complaint does not allege
that their actions were performed under color of
state law or could otherwise be fairly attributed to
the state.
Therefore, plaintiffs cannot bring a
section 1983 claim against 21st Mortgage Corporation
or Knoxville 2012 Trust. See Berry v. Walter Mortg.
Co., No. 1:13CV-00173-JHM, 2014 WL 2219233, at *4
(W.D. Ky. May 29, 2014) (finding that plaintiff
failed to state a § 1983 claim against a mortgage
company when plaintiff’s complaint, construed in the
light most favorable to the plaintiff, did not
indicate or allege that the mortgage company acted
under color of state law).
Furthermore, plaintiffs fail to provide any
factual
support
for
the
allegation
that
the
defendants’
actions
deprived
them
of
any
constitutional rights. Thus, the complaint contains
only “a blanket assertion[] of entitlement to
relief.”
See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 n.3 (2007).
Because such conclusory
allegations are insufficient to state a plausible
claim for relief, the complaint must be dismissed.
See 28 U.S.C. § 1915(e)(2)(B)(ii); Iqbal, 556 U.S. at
679.
(ECF No. 8 at 18-20 (footnotes omitted).)
Congress enacted 28 U.S.C. § 636 to relieve the burden on
the federal judiciary by permitting the assignment of districtcourt duties to magistrate judges.

See United States v.

Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v.
United States, 490 U.S. 858, 869-70 (1989)); see also Baker v.
Peterson, 67 F. App’x 308, 310 (6th Cir. 2003).

For

dispositive matters, “[t]he district judge must determine de
novo any part of the magistrate judge’s disposition that has

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been properly objected to.”
U.S.C. § 636(b)(1).

See Fed. R. Civ. P. 72(b)(3); 28

After reviewing the evidence, the court is

free to accept, reject, or modify the magistrate judge’s
proposed findings or recommendations.

28 U.S.C. § 636(b)(1).

The district court is not required to review -- under a de novo
or any other standard -- those aspects of the report and
recommendation to which no objection is made.
474 U.S. 140, 150 (1985).

Thomas v. Arn,

The district court should adopt the

magistrate judge’s findings and rulings to which no specific
objection is filed.

Id. at 151.

Plaintiffs have not objected to the Report.

Therefore,

adoption of the Report’s recommendations is warranted.

See

Arn, 474 U.S. at 150-51.
For the foregoing reasons, the Report is ADOPTED and this
action is DISMISSED.

So ordered this 17th day of October, 2017.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT COURT JUDGE

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