Opinion
Case No. 1:19-cv-193 Erie
07-25-2019
MATT L. LOPER, Plaintiff v. COMMUNITY BANK, N.A., Defendant
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
I. RECOMMENDATION
It is hereby recommended that the motion for leave to proceed in forma pauperis [ECF No. 1] be GRANTED, and the Clerk be ordered to docket the Complaint.
It is further recommended that this action be dismissed as legally frivolous in accordance with 28 U.S.C. § 1915(e).
II. REPORT
A. Plaintiff's motion for leave to proceed in forma pauperis
Plaintiff Matt L. Loper ("Plaintiff"), an inmate incarcerated at the Crawford County Correctional Facility, initiated this pro se civil rights action by filing a motion for leave to proceed in forma pauperis. In his motion, Plaintiff states that he is unable to pay the filing fee associated with this case. Based upon this averment, it appears that Plaintiff is without sufficient funds to pay the costs and fees of the proceedings. Accordingly, his motion for leave to proceed in forma pauperis should be granted.
B. Assessment of Plaintiff's Complaint
Having been granted leave to proceed in forma pauperis, Plaintiff is subject to the screening provisions in 28 U.S.C. § 1915(e). Among other things, that statute requires the Court to dismiss any action in which the Court determines that the action is "frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2); Muchler v. Greenwald, 624 Fed. Appx. 794, 796-97 (3d Cir. 2015). A frivolous complaint is one which is either based upon an indisputably meritless legal theory (such as when a defendant enjoys immunity from suit) or based upon factual contentions which are clearly baseless (such as when the factual scenario described is fanciful or delusional). Neitzke v. Williams, 490 U.S. 319, 327 (1989). The determination as to whether a complaint fails to state a claim upon which relief may be granted is governed by the same standard applicable to motions to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. D'Agostino v. CECOM RDEC, 436 Fed. Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).
Because Plaintiff is proceeding pro se, his allegations, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Moreover, under the liberal pleading rules, during the initial stages of litigation, a district court should construe all allegations in the complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997).
In the instant case, Plaintiff identifies numerous documents as his "complaint" despite that none of those documents contain a factual narrative or otherwise comport with the Federal Rules of Civil Procedure. For example, the document filed at page 7 of ECF No. 1-2 is labeled both a "complaint" and a "praecipe for entry of judgment and certification of notice under Pa. R.C.P. 237.1(a)." ECF No. 1-2 at 7. That document instructs the clerk to "enter judgment in favor of the Plaintiff, Matt Lynn Loper, and against Community Bank, N.A." Id. The subsequent submission is designated a "complaint" and an "entry of judgment" and appears to contain a proposed order granting judgment against Community Bank in the amount of "'Total Ownership,' of Community Bank, N.A." with "'Total Monies,' in the amount of 'Total value,' for 'Full Amount.'" Id. at 8. Also included are an untitled, largely incoherent statement addressed to the prothonotary [ECF No. 1-2 at 3] and a document styled both a "complaint" and a "notice of entry of judgment pursuant to Pa R.C.P. 236." Id. at 4. By way of relief, Plaintiff asks to be given actual ownership of Community Bank, as well as unspecified monetary damages. Id. at 5, 8-9.
By way of background, the Court takes judicial notice of Plaintiff's allegations in a related lawsuit, Loper v. Sheils Law Associates, No. 19-cv-188 (W.D. Pa. 2019), in which Plaintiff sued the law firm representing Community Bank in a legal action pending in the Court of Common Pleas of Beaver County. Sheils, No. 19-cv-188, ECF No. 1-1 ¶ 2-3. A review of the pleadings in that case indicates that Plaintiff allegedly entered into a "Retail Installment, and Security Agreement" with Community Bank on June 12, 2015, and received "a sum amount of money of $18984.24." Id. ¶¶ 6-7. On December 2, 2016, Community Bank filed a complaint against Plaintiff in the Court of Common Pleas of Beaver County and requested a "bad judgment." Id. ¶¶ 8-9. A "praecipe to discontinue without prejudice" was filed in that action on June 17, 2019, and granted on June 17, 2019. Id. ¶ 12. Although the remainder of his complaint in that action is largely incoherent, Plaintiff appears to contend that the litigation in Beaver County implicated "Federal question cases relating data" and violated unspecified federal statutes. Id. ¶ 16.
The Court may take judicial notice of this prior lawsuit and the documents filed therein because they are matters of public record. See, e.g., Guidotti v. Legal Helpers Debt Resolution, 716 F.3d 764, 722 (3d Cir. 2013); United States v. Hoffert, 2018 WL 4828628, at *1 (W.D. Pa. Oct. 4, 2018) ("[A] court may take judicial notice of relevant prior court orders, including orders in other cases.") (citing Mina v. United States Dist. Court for E. Dist. of Penn., 710 Fed. Appx. 515, 517 n. 3 (3d Cir. 2017)).
Because he appears to be seeking monetary damages for an alleged violation of federal law, the Court will construe Plaintiff's claims as arising under 42 U.S.C. § 1983. See, e.g., Decker v. Northeast Revenue Service, 2017 WL 7052234, at *2 (M.D. Pa. Nov. 13, 2017) (construing a claim for monetary damages based on "a question of federal law" as arising under Section 1983 despite plaintiff's failure to identify "what federal or state law" gave rise to his claim). Section 1983 is not an independent source of substantive rights, but merely "provides a remedy for deprivations of rights established elsewhere in the Constitution or federal laws." Kopec v. Tate, 361 F.3d 772, 775-76 (3d Cir.2004). To establish liability under Section 1983, a plaintiff must demonstrate: (1) a deprivation under the Constitution or laws of the United States, (2) by a person acting under color of state law. Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir.1995).
Applying these principles to the instant case, the Court concludes that Plaintiff's Section 1983 claims should be summarily dismissed. Even in the absence of detailed factual allegations, it is evident from Plaintiff's submissions that the lone defendant in this action, a private financial institution, is not amenable to suit under Section 1983. Gerhart v. Energy Transfer Partners, L.P., 2018 WL 6589586, at *9 (M.D. Pa. Dec. 14, 2018) ("Generally, private actors do not act under color of state law [and] thus are not liable under Section 1983.") (quoting Luck v. Mount Airy #1, LLC, 901 F.Supp.2d 547, 560 (M.D. Pa. 2012)). Indeed, "the Third Circuit Court of Appeals has repeatedly found that constitutional claims brought against banks fail as a matter of law because banks and their employees do not qualify as state actors." Swope v. Nortumberland National Bank, 2014 WL 4716944, at * (M.D. Pa. Sep. 22, 2014) (collecting cases). See also Brookhart v. Rohr, 385 Fed. Appx. 67, 68 (3d Cir. 2010) (dismissing appeal from order that dismissed allegations of unconstitutional conduct by private parties in state court foreclosure proceedings because the parties were not state actors); James v. Heritage Valley Fed. Credit Union, 197 Fed. Appx. 102, 106 (3d Cir. 2006) (defendant credit union not a state actor for purposes of section 1983); and Awala v. Wachovia Corp., 156 Fed. Appx. 527, 528 (3d Cir. 2005) (bank held not to be a state actor merely because it operates within a regulated industry). Because Plaintiff has failed to allege any facts from which the Court might plausibly infer that Community Bank acted under color of state law, his complaint is subject to summary dismissal. Massey v. Crady, 2018 WL 4328002, at *6 (W.D. Pa. Aug. 8, 2018) ("Private citizens, such as [defendants] are not state actors, and therefore . . . any § 1983 claims against [them] should be dismissed."); Little v. Hammond, 2016 WL 7324593, at *4 (W.D. Pa. Dec. 16, 2016) (same).
The Court recognizes the possibility that Plaintiff - despite explicitly invoking federal question jurisdiction in his "complaint" - may actually be attempting invoke this Court's diversity jurisdiction and assert claims under Pennsylvania state law. In light of this possibility, it is recommended that Plaintiff be offered an opportunity to amend his complaint for the sole purpose of raising such claims, if that was his intention. With respect to his § 1983 claims, the Court concludes, as a matter of law, that the allegations in this lawsuit are not amenable to any construction or revision that might plausibly support an inference that Community Bank is a state actor. Accordingly, leave to file an amended complaint asserting claims pursuant to § 1983 should be denied as futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002) (instructing Courts to provide leave to amend prior to dismissing a civil rights complaint unless such an amendment would be inequitable or futile). III. CONCLUSION
Plaintiff is a Pennsylvania resident. The address provided for Community Bank is located in the state of New York.
For the foregoing reasons, it is respectfully recommended that that the motion for leave to proceed in forma pauperis (ECF No. 1) be GRANTED.
It is further recommended that this action be dismissed as legally frivolous in accordance with 28 U.S.C. § 1915(e) and that Plaintiff be provided with an opportunity to amend his pleading, but only with respect to any potential state law claims.
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the Objections shall have fourteen (14) days from the date of service of the Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Extensions of time will not be granted. Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).
/s/ Richard A. Lanzillo
RICHARD A. LANZILLO
United States Magistrate Judge Dated: July 25, 2019