Opinion
Civil Action No. 3:03-CV-2030-R
November 17, 2003
FINDINGS, CONCLUSIONS, RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Before the Court are Defendants' Rule 12(b)(6) Motion to Dismiss and Rule 9(b) Motion to Plead Fraud Charges with Specificity, filed September 29, 2003, Plaintiff's [sic] Memorandum of Law in Opposition to Defendants Motions [sic] to Dismiss 12(b)(6) and Motion to Plead Fraud Charges with Specificity Rule 9(b), filed October 22, 2003, and Defendants' Reply to Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss and Rule 9(b) Motion to Plead Fraud Charges with Specificity, filed November 12, 2003. The preceding pleadings were referred to the undersigned United States Magistrate Judge for hearing, if necessary, and determination or recommendation pursuant to the District Court's Order of Reference, filed October 7, 2003. Based on the pleadings and the applicable law, the Court is of the opinion that the defendant's motion to dismiss should be GRANTED.
I. BACKGROUND
On September 8, 2003, Brian K. Maynard ("Plaintiff") proceeding pro se filed this action against Price Realty Management Corp. ("Defendant"). Liberally construing Plaintiff's pro se Complaint, Plaintiff appears to assert over a dozen constitutional and state law claims, including claims for violations of the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution, negligence, entrapment, nuisance, malfeasance, conspiracy, fraud, "criminal libel," tampering with physical evidence, defamation, and violations of the Texas Deceptive Trade Practices Act. These claims arise out of a $130.04 judgment obtained against Plaintiff in a Texas state court by The Park on Greenville Apartments for past-due rent on his apartment. Plaintiff complains of the subsequent reporting of that judgment to a credit reporting agency, Trans Union. (Compl. at 10-3.) Plaintiff alleges that because he appealed that judgment, it should not have been reported to the credit bureau and it should not appear on his Trans Union Credit Report. Plaintiff also complains that Defendant is responsible for the following statements on his Trans Union Credit Report:Special Messages
Trans-Alert: Current input address does not match file address(es) Hawk Alert: . . . File Previous Address is a multi-unit building reported as suspicious (unit 109).
(Compl. at Ex. E-A and E-G.) Plaintiff complains about his address being noted as "suspicious."
On September 29, 2003, Defendant filed the instant motion to dismiss ("Mot.") for failure to state a claim under FED. R. CIV. P. 12(b)(6) or, alternatively, for Plaintiff to replead his state law fraud claim with particularity as required by FED. R. CIV. P. 9(b). (Mot. at 1.) Defendant argues that it neither obtained the judgment against Plaintiff nor placed any of the complained-of statements on Plaintiff's credit report. See id. Defendant avers that Plaintiff brought this action against it for harassment, and that Plaintiff's entire Complaint fails to state a claim for relief. See id. at 2-4. Defendant alternatively moves for an order directing Plaintiff to replead his state law fraud claim with particularity as required by Rule 9(b). See id. at 4-5.
Plaintiff filed a response ("Resp.") on October 22, 2003, asserting that he has stated a claim and that this is now a class action lawsuit on behalf of "Pete and Richard Roe" and others similarly situated. (Resp. at 1.) Plaintiff contends that this action was brought because of Defendant's harassment and "Criminal Syndicalism" in violation of § 1983. Plaintiff also claims that he was denied a fair trial because the $130.04 judgment was reported to the credit agency while it was on appeal, thus, violating his rights under the First, Sixth, and Fourteenth Amendments. Plaintiff further alleges that the state court that rendered the judgment against him exposed its records to the public in violation of his Fourth Amendment rights. (Resp. at 4.) Additionally, Plaintiff complains that the statement on his credit report regarding "suspicious unit 109" is defamation, which, coupled with the reporting of the judgment, resulted in a violation of his privacy rights and the seizure of his home and livelihood. See id. at 5. Finally, Plaintiff elaborates that his fraud claim is based on the conclusion that the state court maintained and transmitted a fraudulent docket sheet on appeal.
Black's Law Dictionary defines "Criminal Syndicalism" as either "Any doctrine or precept advocating, teaching or aiding and abetting the commission of crime of sabotage or unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a change in industrial ownership or control or affecting political change" or "The advocacy of sabotage, violence, terrorism, or other unlawful methods for revolutionary purposes." BLACK'S LAW DICTIONARY 374 (6th ed. 1990).
II. ANALYSIS
A. FED. R. CIV. P. 12(b)(6) Standard
Defendant argues that Plaintiff's Complaint should be dismissed pursuant to FED. R. CIV. P. 12(b)(6) because it fails to state a claim. A "motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted." Maple Ave., 2002 WL 1758189, at *3 (citing Kaiser Aluminum Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982) (quoting CHARLES A. WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357, at 598 (1969)). "[D]ismissal of a claim on the basis of barebones pleadings is a `precarious disposition with a high mortality rate.'" Id. (quoting Barber v. Motor Vessel "Blue Cat," 372 F.2d 626, 627 (5th Cir. 1967)). "The court may dismiss a claim when it is clear that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per curiam). In analyzing the complaint, the court will accept all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. See Maple Ave., 2002 WL 1758189, at *3. "The issue is not whether the plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim." Id. "Thus, the court should not dismiss the claim unless the plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint." Id. Although Rule 12(b)(6) "dismissal is ordinarily determined by whether the facts alleged in the complaint give rise to a cause of action, a claim may also be dismissed if a successful affirmative defense appears clearly on the face of the pleadings." Id. at *4 (citing Clark v. Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)). When a successful affirmative defense appears on the face of the pleadings, dismissal under Rule 12(b)(6) may be appropriate. See Kansa Reinsurance Co. v. Congressional Mtg. Corp. of Tex., 20 F.3d 1362, 1366 (5th Cir. 1994).
B. Federal Claims
Plaintiff brings this action pursuant 42 U.S.C. § 1983, alleging that Defendant violated his constitutional rights. Section 1983 "provides a federal cause of action for the deprivation, under color of law, of a citizen's `rights, privileges, or immunities secured by the Constitution and laws' of the United States." Livadas v. Bradshaw, 512 U.S. 107, 132 (1994). It "afford[s] redress for violations of federal statutes, as well as of constitutional norms." Id. To state a claim under § 1983, "a plaintiff must (1) allege a violation of rights secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law." McKinney v. Irving Independent School Dist., 309 F.3d 308, 312 (5th Cir. 2002); see also Morris v. Dillard Dept. Stores, Inc., 277 F.3d 743, 747 (5th Cir. 2001) (requiring state action as a threshold matter in the context of a § 1983 claim).
The first step in analyzing any § 1983 claim is to identify the specific constitutional right allegedly infringed. See John Corp. v. City of Houston, 214 F.3d 573, 576-77 (5th Cir. 2000) (citing Baker v. McCollan, 443 U.S. 137, 140 (1979) (noting the need "to isolate the precise constitutional violation with which [the defendant] is charged" in § 1983 cases)). Plaintiff alleges that Defendant violated his Fourth Amendment right to "personal privacy,"and deprived him of life, liberty, and the pursuit of happiness in violation of his Fifth Amendment. (Compl. at 2.) hi addition, he complains that Defendant violated his Sixth Amendment right to a jury trial and his Fourteenth Amendment right to equal protection. See id. Further, Plaintiff contends that he received "Desperate [sic] Treatment" in violation of § 1983. Defendant argues that Plaintiff fails to state a claim upon which relief can be granted for these federal claims because Plaintiff has failed to allege any governmental action or provide any factual support for these claims.
As a threshold matter, for Plaintiff to state any of the above claims, he must show some governmental action. See Lewis v. Woods, 848 F.2d 649, 652 (5th Cir. 1988) ("It is axiomatic that a plaintiff who files suit under 42 U.S.C. § 1983 may recover only if he proves a constitutional violation"). While private action may give rise to state tort law claims, that action is an insufficient predicate on which to base constitutional claims under § 1983 claims. These claims require either direct governmental action or a nexus between a private party's actions and governmental conduct. For instance, "[p]rivate party conduct does not raise Fourth Amendment concerns; only activity by government agents implicates a person's Fourth Amendment rights." United States v. Earth, 26 F. Supp.2d 929, 935 (W.D. Tex. 1998) (emphasis added) (citing United States v. Paige, 136 F.3d 1012, 1017 (5th Cir. 1998)). Similarly, the "Fifth Amendment applies to and restricts only the activities of the federal government and not those of private persons. It is equally well established that private action is immune from the restrictions imposed upon the states by the Fourteenth Amendment." Rodriguez v. Carroll, 510 F. Supp. 547, 550 (S.D. Tex. 1981) (citation omitted, emphasis added); see also Brennan v. Stewart, 834 F.2d 1248, 1257 (5th Cir. 1988) (noting that a violation of the Fourteenth Amendment right to equal protection "occurs only when the government treats someone differently than others similarly situated"). Further, the Sixth Amendment's right to a criminal trial by a jury selected from a fair cross-section of the community requires some nexus with state action. See United States v. Alvarez, 580 F.2d 1251, 1255 (5th Cir. 1978) (noting that "the requirement of state action imposed by the Fourteenth Amendment on all rights incorporated thereunder" includes the rights of the Sixth Amendment).
To find state action by a private individual, a plaintiff must show that the private actor "performs a function which is traditionally the exclusive province of the state" or that "there is a nexus between the state and the action of the private defendant such that the action is fairly attributable to the state." Wong v. Stripling, 881 F.2d 200, 202 (5th Cir. 1989). Under the latter alternative,
a finding of state action is justified `"only where it can be said that the state is responsible for the specific conduct of which the plaintiff complains.' A state is not responsible for a private party's decisions unless it `has exercised coercive power or has provided such significant encouragement, . . . that the choice must in law be deemed to be that of the state.'"Id. (citations omitted).
To ascertain if Plaintiff has stated a claim, the Court looks to the facts alleged in the Complaint, not the legal conclusions drawn by Plaintiff, and the Court accepts those facts as true. "In 12(b)(6) context, court must look to facts alleged to establish § 1983 claim, rather than labels used to describe those facts" Greene v. Piano, I.S.D., 227 F. Supp.2d 615, 619 (E.D. Tex. 2002) (citing Lewellen v. Metropolitan Government of Nashville and Davidson County, Tenn., 34 F.3d 345, 349 (6th Cir. 1994)). The alleged facts show that at some time before May 2001, Plaintiff lived in an apartment complex in Dallas, Texas, named The Park on Greenville Apartments. That complex sued Plaintiff for past-due rent and, in May 2001, obtained a judgment against Plaintiff for $130.04. Plaintiff appears to have appealed the judgment. It is unclear when the judgment was reported to Trans Union, although notation of the judgment appears on Plaintiff's February 24, 2003, and July 14, 2003 Trans Union Credit Reports. Plaintiff's February 24, 2003 credit report also reflects a "special message" that "File Previous Address is a multi-unit building reported as suspicious (unit 109)." The reason for this notation is unclear; nevertheless, it does not appear on Plaintiff's recent July 14, 2003 credit report.
Plaintiff did not provide the Court with the outcome of the appeal.
Accepting Plaintiff's entire Complaint as true, Plaintiff has failed to state any governmental action or a nexus between Defendant's alleged conduct and governmental action. Without such governmental action, Plaintiff's Complaint fails to state a claim upon which relief could be granted for his constitutional claims under § 1983. See Barth, 26 F. Supp.2d at 935 (requiring governmental action for claim under Fourth Amendment); see also Rodriguez, 5 10 F. Supp. at 550 (same for Fifth Amendment); Brennan, 834 F.2d at 1257 (same for Fourteenth Amendment); Alvarez, 580 F.2d at 1255 (same for Sixth Amendment); McKinney, 309 F.3d at 3 12 (requiring action under color of state law under § 1983 claim). Accordingly, Defendant's motion should be granted with respect to Plaintiff's § 1983 claims, and these claims should be dismissed with prejudice pursuant to Rule 12(b)(6).
C. State Claims
Plaintiff also alleges state law claims for negligence, entrapment, nuisance, malfeasance, conspiracy, fraud, "criminal libel," tampering with physical evidence, defamation, and violations of the Texas Deceptive Trade Practices Act. Under 28 United States Code § 1367, "a district court has broad discretion to decline to exercise supplemental jurisdiction over pendent state claims if it has dismissed all claims over which it has original jurisdiction." Lacy v. ADP, Inc., 2001 WL 1006064, at *5 (N.D. Tex. Aug. 14, 2001) (Buchmeyer, J.) (citing 28 U.S.C. § 1367(c)(3), and United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966)). "Relevant factors to consider in the exercise of the court's discretion include judicial economy, convenience, fairness to litigants, and comity." Id. "The Supreme Court has held that `in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered . . . will point toward declining to exercise jurisdiction over the remaining state-law claims." Id. (quoting Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n. 7 (1988)).
In this case, the factors weigh in favor of dismissing the remaining state law claims. See id. First, this "case is still in the early stages of litigation and there is no evidence that refiling this case in state court would create an undue burden on the parties." Search Intern., Inc. v. Snelling and Snelling, Inc., 168 F. Supp.2d 621, 627 (N.D. Tex. 2001) (Buchmeyer, J.). Second, because both parties are Texas residents, the interests of comity dictate that Texas's interest in this case is greater than that of the federal judiciary now that there are no federal issues involved. See Lacy, 2001 WL 1006064, at *5. For these reasons, the Court should decline to exercise its supplemental jurisdiction, and the state law claims in this case should be dismissed. See Search Intern., Inc., 168 F. Supp.2d at 627; see also Lacy, 2001 WL 1006064, at *5.
III. RECOMMENDATION
For the foregoing reasons, the Court RECOMMENDS that Defendants' Rule 12(b)(6) Motion to Dismiss and Rule 9(b) Motion to Plead Fraud Charges with Specificity be GRANTED and Plaintiff's claims under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution be DISMISSED with prejudice, and Plaintiff's state law claims for negligence, entrapment, nuisance, malfeasance, conspiracy, fraud, criminal libel, tampering with physical evidence, defamation, and violations of the Texas Deceptive Trade Practices Act be DISMISSED without prejudice.
SO RECOMMENDED
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Perales v. Casillas, 950 F.2d 1066, 1070 (5th Cir. 1992). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).